Appeal from the Order entered May 6, 2011, in the Court of Common Pleas of Chester County, Civil Division, at No(s): 06-11350.
The opinion of the court was delivered by: Strassburger, J.
BEFORE: PANELLA, LAZARUS, and STRASSBURGER*, JJ.
OPINION BY STRASSBURGER, J.
Bret Howard Reber (Husband) appeals from the final divorce decree and order of equitable distribution in which the trial court awarded Andrea Lynn Reiss (Wife) the frozen pre-embryos*fn1 created from Husband's sperm and Wife's eggs. Upon review, we affirm.
Husband and Wife were married on October 12, 2002. The trial court summarized the relevant facts as follows.
In November 2003, Wife, at the age of 36, was diagnosed with breast cancer. As a result of the diagnosis and proposed recommended cancer treatments, the parties were advised to undergo in vitro fertilization ("IVF") to preserve Wife's ability to conceive a child.*fn2 To accommodate the IVF process, Wife deferred the commencement of her cancer treatment for several months.*fn3 In February and March 2004, Husband and Wife underwent the IVF process resulting in the production of thirteen pre-embryos using Husband's sperm and Wife's eggs.*fn4
Following fertilization, the pre-embryos were then cryopreserved and presently remain frozen and stored with Reproductive Science Institute of Suburban Philadelphia, P.C. ("RSI").
After undergoing the IVF process, Wife proceeded with extensive breast cancer treatments including two surgeries, eight rounds of chemotherapy and 37 rounds of radiation. Wife has undergone testing with regard to her ability to have children since her recovery from cancer and testified that she "was lead [sic] to believe that I cannot have children myself as I am."
On December 28, 2006, Husband filed a Complaint in Divorce. Husband subsequently developed a relationship with another woman and on January 18, 2008, approximately 18 months after he and Wife separated, Husband's biological son was born with this other women [sic]. Husband testified that this child was conceived intentionally and that he intends to have more children.
Wife, now age 44, has no children. Wife seeks all thirteen pre-embryos for implantation. The parties agree, as does the [trial] court, that the pre-embryos are marital property subject to equitable distribution.
Husband filed an Amended Complaint in Divorce on July 7, 2008. Service of the Complaint was accepted on January 26, 2009. Husband filed an Affidavit under Section 3301(d) on July 23, 2008. The marriage of the parties is irretrievably broken and the parties have lived separate and apart for a period in excess of two years.
[Husband] filed a Motion for the Appointment of a Special Master on January 27, 2009. Master Lynn Snyder was appointed on February 9, 2009 and held a preliminary conference on February 23, 2009. Master Snyder held a settlement conference on May 14, 2009. The case did not settle and a certificate of trial readiness was filed on May 14, 2009. The trial was conducted on February 22, 2010 before Master Snyder.
On August 11, 2010, Master Snyder filed an Amended Report and Recommendation addressing the distribution of the parties' pre-embryos. [That report provided, in relevant part, that "the pre[-]embryos be awarded to Husband, who shall direct RSI that the pre-embryos be destroyed and discarded forthwith." Master's Amended Report, 8/11/2010, at 18.] Wife filed one Exception to the Master's Amended Report on August 25, 2010, [which related to the disposition of the pre-embryos]. Wife filed a Brief in Support of Exceptions on October 20, 2010. Husband filed a Brief in Response to [Wife's] Brief in Support of Wife's Exceptions on November 3, 2010. On November 10, 2010, the [trial court] heard oral argument on Wife's exception.
Trial Court Opinion, 5/6/2011, at 1-3 (citations omitted; footnotes added).
After argument, the trial court concluded that while "ordinarily the party wishing to avoid procreation should prevail, in our balancing of the facts unique to this case, we find that Wife's inability to achieve biological parenthood without the use of the pre-embryos is an interest which outweighs Husband's desire to avoid procreation." Trial Court Opinion, 5/6/2011, at 9. Accordingly, the trial court entered a final decree and awarded the pre-embryos to Wife as part of the order of equitable distribution. Final Decree, 5/6/2011, at 3 (unnumbered). Husband filed a timely notice of appeal and both Husband and the trial court complied with Pa.R.A.P. 1925.
On appeal, Husband presents numerous issues for review. The primary focus for Husband is that the trial court erred in finding that Wife's interests in procreating outweighed Husband's interests to avoid unwanted procreation.
We review an equitable distribution order for an abuse of discretion. Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009).
A trial court has broad discretion when fashioning an award of equitable distribution. Our standard of review when assessing the propriety of an order effectuating the equitable distribution of marital property is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure. We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. This Court will not find an abuse of discretion unless the law has been overridden or misapplied or the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record. In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. We measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights.
Id. (internal citations and quotations omitted).
First, we point out, and both parties agree, that the contested disposition of frozen pre-embryos in the event of divorce is an issue of first impression in Pennsylvania. Trial Court Opinion, 5/6/2011, at 4; Husband's Brief at 10; Wife's Brief at 13. The cryopreservation of pre-embryos presents novel legal issues, "primarily because of the potential for the passage of several years between fertilization and later transfer and subsequent birth of the child." Wilder, supra. In this case, Husband and Wife have separated and now disagree on whether the pre-embryos should be awarded to Wife for implantation or be awarded to Husband for either donation to research or destruction.
In determining who should receive these pre-embryos, we find guidance in the case law from our sister states that have addressed similar issues. These jurisdictions have conducted three types of analyses: the contractual approach, the contemporaneous mutual consent approach, and the balancing approach.
Some states first look to any prior agreements between the parties regarding the disposition of cryopreserved pre-embryos. See Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998); Roman v. Roman, 193 S.W.3d 40 (Tex. 2006); In re Marriage of Dahl & Angle, 194 P.3d 834, 841 (Or. Ct. App. 2008). In all three cases, the 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 or donated to research. All three courts held that such an agreement was enforceable and did not violate public policy.
When considering a similar issue, the Supreme Court of Massachusetts came out differently. See A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000). In that case, the husband and wife utilized IVF and had twins. Prior to undergoing IVF, they filled in the portion of a consent form that provided that should the parties "separate," the wife would attain possession of any cryopreserved pre-embryos. The husband and wife subsequently separated and the wife wanted to use their cryopreserved pre-embryos for herself to have more children. Husband objected. The Supreme Court concluded that husband and wife never intended the agreement to be binding as an agreement between the two of them, the term "separation" is legally distinguishable from "divorce," and the consent form was ambiguous. Id. at 1056-7. Thus, the Court declined to enforce the agreement. Furthermore, the Supreme Court of Massachusetts opined in dictum that "even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen ...