The Superior Court of Pennsylvania relied heavily on a law review article authored by TJSL Professor Ellen Waldman in affirming the award of cryopreserved pre-embryos to a divorcing wife seeking post-marital motherhood.
Professor Waldman’s article, “The Parent Trap: Uncovering the Myth of ‘Coerced Parenthood’ in Frozen Embryo Disputes,” was published in the American University Law Review in 2004. In her article, she encourages the courts to “adopt guidelines that more equitably assess the parties’ competing reproductive interests” and to avoid inappropriate presumptions “where careful and fact-sensitive analysis is necessary to fairly assess the interests at stake.” Specifically, Professor Waldman was concerned that “courts stray when they presume that parties seeking to avoid unwanted genetic links should prevail in frozen embryo disputes.”
In the Pennsylvania case, the Court of Common Pleas of Chester County had awarded the wife 13 frozen pre-embryos that had been conceived a few years earlier via in vitro fertilization. The wife underwent extensive breast cancer treatment and, at the time of divorce, believed that she was no longer able to become pregnant. The husband appealed and lost.
In her article, Professor Waldman challenged the judicial presumption that the right to avoid procreation should, in frozen embryo disputes, always trump the interest to achieve genetic parenthood and took issue with judicial notions that adoption exists as a viable option for aging single divorcees. The opinion by the Superior Court, issued this April and cited as 2012 WL 1202039 (Pa.Super.), relied on Waldman's work in rejecting the husband’s claim that his ex-wife, if precluded from using the frozen embryos, could simply adopt. The court wrote:
"Adoption is a complicated process. There are three routes by which one may adopt a child. None [is] risk or burden-free and the burdens are multiplied for aging single women." Ellen Waldman, The Parent Trap: Uncovering the Myth of 'Coerced Parenthood' in Frozen Embryo Disputes, 53 Am. U.L.Rev. 1021, 1056 (2004).
Waldman then goes on to discuss the public, private, and international routes for adoption, all of which pose significant obstacles to Wife. She notes that in terms of public adoption, there are many more adoptive parents than children available for adoption. Furthermore, when public adoption agencies do have a 'child, they first look to place that child with a married couple and will only look to a single person as a secondary option.' Additionally, there are issues for older, single women when it comes to private adoption. She notes that 'all private agencies have their own requirements regarding age, marital status and income that may exclude older single mothers.' The same holds true for foreign adoption, which leads Waldman to conclude that '[a]doption, especially for single older women, is an expensive process fraught with the potential for protracted delay and ultimate disappointment.'
Thus, we conclude that Wife's compelling interests in using the pre-embryos include the fact that these pre-embryos are the option that provides her with what is likely her only chance at genetic parenthood and her most reasonable chance for parenthood at all."
Professor Waldman has written extensively about frozen embryo disputes and is pleased that courts are now beginning to examine some of the cultural myths and practical realities that she believes have muddied earlier courts’ treatment of the topic. “It’s very gratifying to think that the writing we do does actually lead courts to reach better, more informed decisions,” she said.