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Parental property? Court adopts balancing test to award viable pre-embryo

Kelly Caplan//January 18, 2022

Parental property? Court adopts balancing test to award viable pre-embryo

Kelly Caplan//January 18, 2022

A trial court’s award of a preserved pre-embryo to a wife with no compensation to the husband for his share of the marital property has been reversed by the Court of Appeals.

Chief Judge Marla Graff Decker remanded the case to the Albemarle Circuit Court with instructions to apply a balancing approach to determine how to award the pre-embryo.

The decision is Jessee v. Jessee (021-7-178).


Michael Herbert Jessee and Michelle Evora Jessee tried to conceive a baby naturally for six months without success. They opted for medical intervention at Dominion Fertility, a fertility treatment center.

After in vitro fertilization, or IVF, two pre-embryos were viable. One pre-embryo was transferred to Michelle’s uterus, but the resulting pregnancy ended in miscarriage.

The couple had planned to transfer the remaining viable pre-embryo. Ultimately, however, their relationship deteriorated, and Michael filed for divorce.

Michael asked the Albemarle County Circuit Court to award the remaining cryopreserved viable pre-embryo to him. He intended to have the clinic where it was stored destroy it.

Michelle wanted to use the remaining viable pre-embryo to try to become pregnant again through assisted reproduction, believing it might be her only remaining chance to have a biological child.

The trial court and the parties agreed the pre-embryo was property. But Michael and Michelle argued that, because of the special nature of the property, its disposition impacted their constitutional rights. They also recognized that the circuit court had no binding case law to guide its decision about the award of the pre-embryo.

The lone Virginia opinion on the subject — 2017’s Patel v. Patel — was discussed in great detail by the parties.

In the end, the circuit court awarded the pre-embryo to Michelle. The equitable distribution determination awarded Michael $9,481 based on the marital share of certain assets.

In his motion to reconsider, Michael asked the trial court to identify the methodology it used to determine the award, and asked to be awarded the viable pre-embryo or his monetary share of the property.

The trial court explained it considered “the equity” of the parties’ respective “positions.” According to the opinion, the trial court also found that the award of the pre-embryo to Michelle did not support paying Michael “for any marital share of the irreplaceable property because it had no market value and no practical replacement value.”

Court intervention

Decker said it was important to note that Virginia has no statute directly on point, but the trial court and the parties “agreed to treat the pre-embryo as a type of property subject to equitable distribution under Code § 20-107.3.”

Michael argued that any award of the pre-embryo to Michelle was “a de facto unconstitutional governmental intrusion on his constitutional right to procreational autonomy” since the state did not have a compelling interest at stake.

But the appellate court looked to the language in the contract Michael and Michelle had with the fertility clinic.

“[T[he husband agreed [in the contract] that in the event of divorce, ‘the ownership and/or other rights to the embryo(s)’ would be ‘directed by a court decree and/or settlement agreement,’” Decker wrote. “Further, in his complaint for divorce, the husband specifically asked the circuit court to distribute the pre-embryo as marital property. After inviting the court to distribute the property, he was then unsatisfied with the disposition and now argues that the circuit court action regarding the pre-embryo was an unconstitutional governmental intrusion.”

Thus, Decker said Michael can’t object to undue governmental interest after specifically asking the court to intervene.

First for Virginia

Decker said while other stated have tackled this issue, this case “presents the first time an appellate court in Virginia has been called upon to resolve a dispute over the award of a preserved pre-embryo.”

Three approaches have been used in other jurisdictions to determine distribution: contemporaneous mutual consent, contractual and balancing, Decker said.

Under the first, pre-embryos must stay in storage until the parties agree to a disposition. Status quo is maintained and the pre-embryos remain in storage indefinitely if the parties don’t reach an agreement.

The contractual method, however, stipulates that a pre-existing agreement between the parties about the disposition of preserved pre-embryos is “presumed valid and enforceable.”

Finally, the balancing approach compels a circuit court to weigh the parties’ respective interests in the pre-embryos.

The majority of jurisdictions that have tackled this issue have embraced the contractual approach. Absent an agreement, though, courts have applied the third method, which balances the competing interests of the parties.

“We agree with this approach because it addresses constitutional concerns by taking the parties’ competing constitutional interests into account,” Decker wrote.

Controlling agreement

Decker said the only relevant contract at play is the parties’ agreement with the fertility clinic they contracted with to develop and store the pre-embryos.

That contract said “the ownership and/or other rights to the embryo(s) will be as directed by a court decree and/or settlement agreement” if the parties divorced. In fact, Decker said, “to the extent it is relevant at all, it points directly to a divorce decree or settlement agreement in court.”

In this case, the parties did not discuss the allocation of the pre-embryos in the event of their divorce.

“Based on the record, we conclude that the parties did not have an agreement in place addressing the disposition of any remaining pre-embryos in the event of a divorce,” Decker said.

Balancing act

The balancing test is the appropriate method to use in this case, Decker said.

Balancing the parties’ individual interests requires consideration of several factors, and courts should ponder the possibility of a party’s “bad faith and attempt to use the frozen pre-embryo[s] as leverage in the divorce proceeding.”

Decker said there was no record evidence that the trial court used the balancing approach, and it did not specify which approach it took when asked.

“Although the court noted that it considered ‘the equity of the positions of the parties’ in evaluating their interests in the pre-embryo, comments such as referencing the wife’s ‘right’ and the husband’s ‘wish’ reflect confusion as to the law,” Decker wrote. “Several places in the record reflect that confusion and lack of clarity.”

On remand, therefore, the trial court must use the proper framework laid out by the appellate court.

“[I]n considering the relevant factors, the court ‘is not required to quantify the weight given to each [one], nor is it required to weigh each factor equally,’” Decker said. “Instead, the court must balance the parties’ respective interests in the preserved pre-embryo by considering the various relevant factors.”

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