Reproductive Technology Issues
There have been many innovations in reproductive technology that allow individuals to become pregnant when they were otherwise unable. With new technology, the egg, sperm, and womb needed to make a child can be provided by three different individuals after one person’s death. For this reason, new legal and ethical issues have arisen requiring judges to determine who has custody over a frozen egg post-divorce.
For instance, a married woman diagnosed with a cancer that eliminated all possibilities of her getting pregnant may decide to have her eggs inseminated by her husband’s sperm to freeze for the couple’s use at a later time. If they get divorced, who would keep the egg? These issues present both moral and ethical dilemmas to the court.
For example, in Kass v. Kass, a husband and wife signed a consent form where they agreed that in the event of death or divorce, any cryopreserved pre-embryos would be donated to research. The court held that such an agreement was enforceable and did not violate public policy. In Roman v. Roman, a husband and wife signed a consent form where they agreed that in the event of death or divorce, any cryopreserved pre-embryos would be destroyed. The court held that such an agreement was enforceable and did not violate public policy. In Reber v. Reiss, the court awarded embryos to a wife over the husband’s objection. The wife did have breast cancer and had no other biological children. Accordingly, the court found the wife’s interests outweighed the husband’s.
Please find another more recent case, attached to this paper, in which the wife underwent in-vitro fertilization to preserve her eggs after she was diagnosed with cancer. The wife and her husband signed a consent agreement that stipulated what would happen to the embryos in the event of death or divorce. The parties ultimately divorced and the court ultimately found for the wife and did not enforce the agreement, which would have required destruction of the eggs. In reaching its decision, the Court considered the factors laid forth in § 20-107.3 of the Code of Virginia.
Special Thanks to Attorney Mallory Brennan for editorial and writing assistance with this article.