There has been much press, and an opinion editorial in today’s New York Times, regarding embryonic custody after a couple has separated, and whether one intended parent has the right to procreate using embryos from a former relationship.
In Pennsylvania, disposition of genetic material (i.e. sperm, eggs, and embryos) is an increasingly common, but unsettled area of family law.
In the precedent case (Reber v. Reiss (2012 Pa.Super 86), the Court held that stored genetic material is subject, within certain limitations, to the ownership, control, and disposition of either its contributors. In that case, the Court weighed each party’s reasons for wanting to access, or not access, the preserved embryos and decided to grant access to the former wife. Because of the balancing approach taken, a different result may occur in future cases. In other states, by contrast, the courts have held the right of the intended parent who does NOT want to procreate supersedes the right of the parent who wants to procreate.
Couples being treated for fertility rely almost exclusively on the expertise of their attending fertility physician to explain the terms of these agreements. If the fertility clinic’s standard agreement allows the use of the embryos by one party or the other without both parties’ consent, the non-consenting party may believe that he or she has no recourse to prevent unwanted procreation. Specific provisions may be required in addressing the future creation, destruction, or storage of genetic material in Property Settlement Agreements. Certainly, the future use and disposition of already stored genetic material should be negotiated and made an express part of every agreement upon entering this process.
Because the law is evolving so quickly, it is advisable to seek an attorney knowledgeable in assisted reproductive technology law to be sure the current letter of the law is followed and that your family is protected.
heARTbeat is a publication of the KingSpry Adoption/ART Law Practice Group. It is meant to be informational and does not constitute legal advice.