Monday, September 10, 2012
It will be very interesting to see whether the Pennsylvania Supreme Court agrees to hear Reber v. Reiss. This appears to be the first case in which a court of appeals has awarded frozen embryos to a woman over the objections of her former partner so she can use the embryos to have children.
Supreme courts in other states have described circumstances under which the law might allow a woman to procreate with frozen embryos despite objections from the former partner, but the intermediate court of appeals decision in Reber broke new ground in April when it actually implemented such a principle in practice. Because of Ms. Reiss' age (44) and prior treatment for breast cancer, the trial court concluded that it was highly unlikely and perhaps impossible for her to have biologically-related children.
Other courts have concluded that a man's objections to use of frozen embryos should trump a woman's desire to use them, but the Pennsylvania court's decision is consistent with the Tennessee Supreme Court's observation in Davis v. Davis that it might be possible to overcome a man's objections "if no other reasonable alternatives exist" for the woman to become a parent.
Pending the Pennsylvania Supreme Court's decision whether to take the case, the embryos are not being used.