Sarah Holman Loy
ABSTRACT
Since the first successful childbirth using in vitro fertilization (IVF) in the 1970s, more couples and individuals have turned to assisted reproductive technology (ART), including IVF, to have children. The various forms of ART open the door to parenthood for couples with infertility problems, as well as for same-sex couples and individuals without partners. However, the increasing prevalence of ART in society has also opened the door to new legal problems that states must now confront.
For example, imagine a married couple that undergoes IVF after being unable to conceive a child naturally. The couple freezes the pre-embryos created through IVF, intending to have them implanted when they are ready to have children. However, the couple divorces before using the pre-embryos. After the divorce, one spouse wants to use the pre-embryos to have children on her own, as she is frightened by the fact that she may not have another chance to have children in the future. Conversely, the other spouse does not want to parent a child with his ex-spouse. The parties turn to the courts for resolution of their disagreement.
Pennsylvania first confronted this problem in Reber v. Reiss. However, in Reber, the Superior Court of Pennsylvania made a fact-sensitive holding and declined to adopt an approach that would apply to pre-embryo disposition in the future. This Comment, after analyzing the Superior Court of Pennsylvania’s rationale in Reber and the approaches adopted in other states, argues that if parties to IVF have made a valid agreement regarding the disposition of pre-embryos following divorce, Pennsylvania courts must enforce that agreement. If parties do not have an agreement, Pennsylvania courts should balance the interests of the parties to determine how to distribute the pre-embryos.