Kenworthy, J.
Case Summary
During their marriage, David Freed (“Father”) and Elizabeth Freed (“Mother”) underwent in vitro fertilization (“IVF”) to attempt to have children. They created and froze pre-embryos,1 signing an agreement with a cryopreservation company. One of those pre-embryos resulted in the birth of a child.
The couple divorced and resolved all issues except the custody of a single remaining frozen pre-embryo. The issue of how to resolve the custody of a frozen pre-embryo has never appeared before our appellate courts, and the trial court looked to the approaches used by other jurisdictions, balancing the parties’ interests and ultimately awarding the pre-embryo to Mother.
Father appeals, raising the issue of whether the trial court’s award of the pre-embryo to Mother over Father’s objection violates Father’s fundamental right of procreation. Determining the trial court applied the appropriate test, we affirm.
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Indiana law supports the trial court’s determination that pre-embryos deserve special respect. The Indiana Supreme Court has found “our laws have long reflected that Hoosiers, through their elected representatives, may collectively conclude that legal protections inherent in personhood commence before birth, so the State’s broad authority to protect the public’s health, welfare, and safety extends to protecting prenatal life.” Members of Med. Licensing Bd. of Ind., 211 N.E.3d at 961. And Indiana Code Section 16-34-2-1.1 requires a woman seeking a legal abortion to sign a consent form acknowledging “human physical life begins when a human ovum is fertilized by a human sperm.” But that definition of human life “does not apply to in vitro fertilization.” I.C. § 16-34- 1-0.5. Therefore, although Indiana law attributes “human physical life” to fertilized eggs in utero, it sets pre-embryos in vitro apart. As such, we cannot say in vitro frozen pre-embryos are entitled to personhood under Indiana law. [Footnote omitted.]
Thus, pre-embryos, as neither property nor persons, are in a separate category that entitles them to special respect. Father and Mother do not have a true property interest in the pre-embryos, but “they do have an interest in the nature of ownership, to the extent they have decision-making authority concerning disposition of the preembryos, within the scope of policy set by law.” Davis, 842 S.W.2d at 597.
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6.1 The cryopreservation agreement is inconclusive about the disposition of the pre-embryo
We agree with the courts that first look for an enforceable agreement regarding the disposition of the pre-embryos in the event of divorce. This approach allows trial courts to attempt to honor both parties’ interests and rights regarding procreation: “[B]inding agreements ‘minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision.’” Rooks, 429 P.3d at 592 (quoting Kass, 696 N.E.2d at 180).
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6.3 We adopt the balancing approach
If the contract approach does not resolve the parties’ dispute, the trial court should then 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.” I.C. § 31-15-7-4(b).
Because pre-embryos are entitled to special respect, certain factors must be considered when balancing the parties’ interests. We agree with the factors as listed in Jocelyn P. and Rooks and state them as: (1) the intended use of the pre-embryos by the party seeking to preserve them; (2) the reasonable ability of the party seeking implantation to have children through other means; (3) the parties’ original reasons for undergoing IVF, which may favor preservation over disposition; (4) the potential burden on the party seeking to avoid becoming a genetic parent; (5) either party’s bad faith attempt to use the pre-embryos as leverage in the dissolution proceeding; and (6) other considerations relevant to the parties’ unique situation.
When weighing the parties’ interests, trial courts should not consider “whether the party seeking to become a genetic parent using the pre-embryos can afford another child.” Rooks, 429 P.3d at 594. And “the sheer number of a party’s existing children, standing alone,” is not “a reason to preclude preservation or use of the pre-embryos.” Id. Finally, because genetic and gestational parenthood are distinct from parenthood through adoption, “courts should not consider whether a spouse seeking to use the pre-embryos to become a genetic parent could instead adopt a child or otherwise parent non-biological children.” Id.
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….We decline to adopt a presumption in favor of either party.
Here, the trial court identified factors identical to those we have adopted and determined a consideration of the factors favors Mother…
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At bottom, the trial court applied the appropriate test, balancing the parties’ interests using the appropriate factors.
Conclusion
On the issue of pre-embryo disposition, trial courts should first look to any existing agreement between the parties to determine whether the parties memorialized their intentions for the pre-embryos upon their separation or divorce. If there is no applicable provision, the trial court’s role and discretion in dividing marital property and determining child custody leads us to conclude that balancing the parties’ interests is the most appropriate way to address pre-embryo disposition upon divorce. But because pre-embryos are entitled to special respect, factors beyond those outlined in Indiana Code Chapter 31-15-7 must be considered. These additional factors include: (1) the intended use of the pre-embryos by the party seeking to preserve them; (2) the reasonable ability of the party seeking implantation to have children through other means; (3) the parties’ original reasons for undergoing IVF, which may favor preservation over disposition; (4) the potential burden on the party seeking to avoid becoming a genetic parent; (5) either party’s bad faith attempt to use the pre-embryos as leverage in the dissolution proceeding; and (6) other considerations relevant to the parties’ unique situation.
Here, the trial court applied the appropriate test and considered the appropriate factors. Accordingly, we affirm.
Affirmed. Foley, J., and Felix, J., concur.