Jessee v. Jessee

866 S.E.2d 46 (2021)

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Nature of the Case

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Facts

H and W married in 2017. They tried to conceive a baby or six months without success and then employed medical intervention to aid in the process. Using in vitro fertilization (IVF) and the biological material of both parties, a clinic facilitated the fertilization of three eggs, referred to as pre-embryos. The process cost around $20,000. Of the three resulting pre-embryos, two were viable and one was not. One was transferred to W but the resulting pregnancy ended in miscarriage. The relationship deteriorated, and H filed for divorce in 2020. H asked the circuit court to award the cryopreserved viable pre-embryo to him so he could destroy it. H worried about the emotional and psychological implications of having a genetic child. W wanted to use the viable pre-embryo in an attempt to become pregnant again through assisted reproduction. W, at 43 years old, believed that due to her decreased fertility and limited finances, it might be her only remaining opportunity to have a biological child. W introduced into evidence a report by the Centers for Disease Control and Prevention. that the success rate is 8% in women aged 41 to 42 years and 3% in women aged 43 and older. W told H she would do it on her own but then also testified that she spent that money on 'lawyer fees' instead and could not afford to undergo IVF again. Everyone classified the pre-embryo as property, albeit of a special nature with its disposition impacting constitutional rights. There was no binding case law to guide its determination regarding the award of this special property. The court awarded the pre-embryo to W. H asked the court to identify the methodology used in determining the award. H requested that the circuit court award him the viable pre-embryo or, alternatively, award him his monetary share of the property. The court explained that it had considered 'the equity' of the parties' respective 'positions' in making the award. The court also found that the award of the pre-embryo to the wife did not support paying the husband for any marital share of the irreplaceable property because it had no market value and no practical replacement value. H appealed.