How Do the Virginia Court’s Classify Viable Pre-Embryos When Determining Equitable Distribution in a Divorce Case?

In the case of Jessee v. Jessee, the parties, after failing to conceive a baby for six months, pursued in vitro fertilization (IVF) using the biological material of both parties. A clinic facilitated fertilization of three eggs, referred to as pre-embryos, two of which were viable, and one was not. One pre-embryo was transferred to Wife’s uterus, but the pregnancy ended in miscarriage. Wife planned to transfer the remaining viable pre-embryo, but the parties did not do so at that time. Husband filed for divorce in 2020.

In the Husband’s Complaint for Divorce, he asked the court to award the pre-embryo to him, which he intended to have destroyed. Wife requested that the court award the pre-embryo to her so that she could use the viable pre-embryo to become pregnant again.

The parties and the Circuit Court agreed that the pre-embryo was property, albeit of a “special nature,” and acknowledged that the Circuit Court had no binding case law to guide its determination regarding the award of this special property. The Court agreed that the pre-embryo was subject to equitable distribution under Virginia Code § 20-107.3 as property. The Court then awarded the pre-embryo to the Wife. The Court explained that it has considered the “equity” of the parties’ respective “positions” in making the award. The court also found that the award of the pre-embryo to Wife did not support paying Husband for any marital share because it had no market value and no practical replacement value. The Husband appealed.

The Court of Appeals (“COA”) found that if a valid contract exists with respect to the disposition of pre-embryo in divorce, then the contract should control. The Court further found that if there was no controlling contract, then the court should employ a balancing approach. The factors to consider include: 1. the intended use for the pre-embryos; 2. the original reason for undergoing IVF; 3. the reasonable ability of the party seeking the pre-embryos to have biological children with other means; 4. the potential burden on the party who seeks to avoid becoming a genetic parent; and 5. whether either party was attempting to use the pre-embryos as leverage in the divorce.

The COA found that the trial court did not adopt the balancing approach and that the trial court’s decision reflected confusion and a lack of clarity. Now having established the appropriate analytical framework for deciding how to award a viable pre-embryo under this specific set of facts, the COA reversed the decision and remanded it back to the trial court for reconsideration under this framework.