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 … [went through] in vitro fertilization (“IVF”) to preserve Wife’s ability to conceive a child…. Following fertilization, the pre-embryos were then cryopreserved and presently remain frozen ….
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. [The appeal in this case is from their divorce decree -EV.] …
Wife, now age 44, has no children. Wife seeks all thirteen pre-embryos for implantation…. [The trial court agreed with wife -EV.] The primary focus for Husband [on appeal] is that the trial court erred in finding that Wife’s interests in procreating outweighed Husband’s interests to avoid unwanted procreation.
This situation, in some states, has moved from the state courts to the state legislatures. However, unless and until our legislature decides to tackle this issue, our courts must consider the individual circumstances of each case. In this case, because Husband and Wife never made an agreement prior to undergoing IVF, and these pre-embryos are likely Wife’s only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all, we agree with the trial court that the balancing of the interests tips in Wife’s favor.
The appellate court also stressed that the ex-wife had promised not to seek child support from the ex-husband, and to otherwise structure the divorce settlement in a way that minimizes the risk that the ex-husband will be held liable for child support. Thanks to How Appealing for the pointer.