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Ruling on an issue of first impression, the Court of Appeals of Indiana has upheld the award of a pre-embryo to a woman in a divorce case, laying out a test for trial courts to apply when faced with disposition of a pre-embryo.
The appellate court found that “the trial court applied the appropriate test and considered the appropriate factors” in the case involving David and Elizabeth Freed.
The Freeds hoped to have two children, so they visited a fertility doctor. The couple also signed an agreement with a cryopreservation company.
The Freeds went through multiple cycles of in vitro fertilization and ultimately had one child. They also had one remaining pre-embryo.
Elizabeth filed for divorce in March 2022, and the parties’ partial settlement agreement resolved all issues except disposition of the pre-embryo.
Elizabeth requested that the Johnson Circuit Court award her the pre-embryo, which she hoped would result in another child.
But David asked the trial court to award him the pre-embryo so he could ask the storage facility to dispose of it.
The trial court found that the cryopreservation contract offered no directive for the disposition of the pre-embryo if the Freeds’ marriage was dissolved. Further, because Indiana lacks a statutory scheme or caselaw on that issue, the court looked to other jurisdictions for guidance.
Ultimately, the trial court ruled that Elizabeth’s interest in using the pre-embryo to conceive a child outweighed David’s interest in avoiding parenthood.
David appealed, raising the issue of whether the trial court’s award of the pre-embryo to Elizabeth over his objection violated his fundamental right of procreation.
Rejecting that argument, Judge Dana Kenworthy wrote, “Father’s argument assumes but does not provide legal authority to explain how the trial court’s order amounts to state action.”
Indiana law supports the trial court’s determination that pre-embryos deserve special respect, Kenworthy wrote.
She also noted that generally, other states have taken three approaches in pre-embryo disposition cases: the contract approach, the balancing test approach and the contemporaneous mutual consent approach.
While the contract approach “is the preferred method of deciding pre-embryo disposition cases,” the COA ruled that if that approach does not dissolve the dispute, trial courts should seek to balance the parties’ interests.
“The balancing approach reflects Indiana trial courts’ role in dissolution proceedings: Mother and Father have an interest in disposition of the pre-embryo after their divorce, and the trial court must weigh their interests and award the pre-embryo ‘in a just and reasonable manner,’” Kenworthy wrote, citing Indiana Code § 31-15-7-4(b).
Because pre-embryos are entitled to special respect, factors beyond those outlined in that section of Indiana Code must be considered, she added.
The additional factors include the intended use of the pre-embryos by the party seeking to preserve them; the reasonable ability of the party seeking implantation to have children through other means; the parties’ original reasons for undergoing IVF, which may favor preservation over disposition; the potential burden on the party seeking to avoid becoming a genetic parent; either party’s bad faith attempt to use the pre-embryos as leverage in the dissolution proceeding; and other considerations relevant to the parties’ unique situation.
“Father appeals the trial court’s use of the balancing test, not the trial court’s balancing of the factors in favor of Mother. And although we disagree with the trial court’s statement that Father is relieved of the potential burden of child support, the error is harmless,” Kenworthy wrote. “Father’s testimony focused on the emotional — not financial — burden of raising a child outside of marriage. He explained his preference for discarding the pre-embryo arises from ‘the fact that [he] would not be present … in that child’s life’ because he and Mother would be divorced.
“Father described how it was already difficult for him to raise G. in that context,” Kenworthy continued. “Father did not provide evidence of — and the trial court placed little emphasis on — any financial burden an additional child would place on Father. Further, the pre-embryo has not resulted in the birth of a child, and any questions regarding support are hypothetical.
“The parties are litigating the disposition of the pre-embryo, not potential support of a potential child. That issue would require a separate hearing when the issue is squarely before the court.”
Judges Peter Foley and Paul Felix concurred in David Freed v. Elizabeth Freed, 23A-DC-129.
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