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Defendant's Attorney: James J. O’Keeffe IV (J. Kyle Farmer; MichieHamlett, PLLC, on
Richmond, VA - Divorce lawyer represented appellant with appealing the equitable distribution award of a preserved pre-embryo.
The parties married in 2017. They tried to conceive a baby naturally for 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 fertilization of
three eggs, referred to as pre-embryos.3
The process cost the parties around $20,000. Of the
three resulting pre-embryos, two were viable and one was not.
One pre-embryo was transferred to the wife’s uterus, but the resulting pregnancy ended in
miscarriage. The wife was distraught, and the parties planned to transfer the remaining viable
pre-embryo in an effort for her to become pregnant. Ultimately, however, the parties did not do
so. Instead, the relationship deteriorated, and the husband filed for divorce in 2020.
In his complaint for divorce, the husband asked the circuit court to award the
cryopreserved viable pre-embryo to him. Once awarded to him, the husband intended to have
the clinic at which it was stored destroy it. He testified that regardless of the lack of a legal
obligation to support any child resulting from the wife’s decision to transfer the remaining viable
In accordance with familiar principles of appellate review, we review the facts in the
light most favorable to the wife, as the prevailing party below. See Armstrong v. Armstrong, 71
Va. App. 97, 102 (2019).
3 The wife explained that the lab removed her eggs and fertilized them with the husband’s
sperm. As reflected in the record, after a pre-embryo develops, it may be transferred to the
uterine cavity. At that stage, not all pre-embryos will implant and attach to the uterine lining.
“Pre-embryo is a medically accurate term for a zygote or fertilized egg that has not been
implanted in a uterus.” Bilbao v. Goodwin, 217 A.3d 977, 980 n.1 (Conn. 2019) (quoting
McQueen v. Gadberry, 507 S.W.3d 127, 134 n.4 (Mo. Ct. App. 2016)). Although “[a]n embryo
proper develops only after implantation,” the legal literature typically uses the term “frozen
embryos” as “a term of art denoting cryogenically preserved pre-embryos.” Id. (quoting
McQueen, 507 S.W.3d at 134 n.4).
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pre-embryo, he worried about the emotional and psychological implications of having a genetic
He also expressed concern that any child might “come looking for [him] at some point.”
The wife wanted to use the viable pre-embryo in an attempt to become pregnant again
through assisted reproduction. At forty-three years of age, she believed that due to her decreased
fertility and limited finances, it might be her only remaining opportunity to have a biological
child. The wife introduced into evidence a report by the Centers for Disease Control and
Prevention. According to that report, “fertility in women is known to decline steadily with age.”
In addition, aging increases a woman’s risk of miscarriage and “of having a child with a genetic
The report further provides that the “success rate” of “assisted reproductive
technology” declines with a woman’s age. The success rate is 8% in women aged 41 to 42 years
and 3% in women aged 43 and older. Although at one point the wife informed the husband that
she “would do IVF on [her] own,” she testified that she spent that money on “lawyer fees”
instead and could not afford to undergo IVF again.
The parties and the circuit court agreed that the pre-embryo was property, albeit of a
special nature. The parties argued that due to the uniqueness of the type of property, the
disposition of the pre-embryo impacted their constitutional rights. They acknowledged that the
circuit court had no binding case law to guide its determination regarding the award of this
special property. They discussed the single Virginia opinion on the subject, a circuit court
opinion, Patel v. Patel, 99 Va. Cir. 11 (2017), in great detail.
4 Under Virginia law, once a complaint for divorce has been filed, a party to the divorce
is not the parent of a child subsequently conceived by the spouse through IVF unless that
individual “consents in writing to be a parent.” Code § 20-158(C).
5 According to the report, decreases in female fertility are also associated with smoking
and excessive alcohol use. The wife testified that she smoked and occasionally drank alcohol but
would quit smoking before continuing with fertility treatments. In addition, she testified that she
had a cancerous mass removed from a breast the prior year, but the record contains no evidence
of any impact that medical history might have on her fertility.
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Ultimately, the circuit court awarded the pre-embryo to the wife.6
The husband filed a
motion to reconsider. In doing so, he asked the court to identify the methodology used in
determining the award. The husband 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.
The husband appeals the equitable distribution award of the pre-embryo to the wife. In
the alternative, he contests the circuit court’s decision declining to make a monetary award
reflecting his share of the marital property.
At the outset, it is important to note that below, the parties and the circuit court agreed to
treat the pre-embryo as a type of property subject to equitable distribution under Code
See generally McQueen v. Gadberry, 507 S.W.3d 127, 149 (Mo. Ct. App. 2016)
(holding that “frozen pre-embryos” are property but “entitled to special respect” due to their
potential to develop into “born children”). The parties put the issue squarely before the circuit
court and ultimately this Court under that framework. Therefore, we do not address the general
applicability of the equitable distribution statute to pre-embryos or whether they constitute
property under Virginia law.
6 The equitable distribution determination also awarded the husband $9,481 based on the
marital share of certain assets.
7 Virginia has no statute directly on point. The equitable distribution statute, Code
§ 20-107.3, encompasses the distribution of property. The statute does not provide a particular
framework for distributing preserved genetic material.
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On review, a circuit court’s “equitable distribution award will not be overturned unless
the [appellate court] finds ‘an abuse of discretion, misapplication or wrongful application of the
equitable distribution statute, or lack of evidence to support the award.’” Anthony v.
Skolnick-Lozano, 63 Va. App. 76, 83 (2014) (quoting Wiencko v. Takayama, 62 Va. App. 217,
229-30 (2013)). For those matters raised in this appeal that fall within the circuit court’s
discretion, this Court cannot determine that an abuse of discretion has occurred unless
“reasonable jurists could not differ” on the conclusion that the court erred. See Wynnycky v.
Kozel, 71 Va. App. 177, 193 (2019) (quoting Reston Hosp. Ctr. v. Remley, 63 Va. App. 755, 764
(2014)). “Our use of this deferential standard of review ‘rests on the venerable belief that the
judge closest to the contest is the judge best able to discern where the equities lie.’” Id. (quoting
Hamad v. Hamad, 61 Va. App. 593, 607 (2013)). “[B]y definition,” however, a circuit court
“abuses its discretion when it makes an error of law.” Coffman v. Commonwealth, 67 Va. App.
163, 166 (2017) (quoting Commonwealth v. Greer, 63 Va. App. 561, 568 (2014)).
An equitable distribution award has both legal and factual components. This Court
reviews the circuit court’s legal conclusions de novo. Dixon v. Dixon, 71 Va. App. 709, 718
(2020). In contrast, an appellate court will not set aside a circuit court’s factual findings unless
“plainly wrong or without evidence to support [them].” Hughes v. Hughes, 33 Va. App. 141,
146 (2000) (quoting Farley v. Farley, 9 Va. App. 326, 328 (1990)). If credible evidence in the
record supports the court’s findings, this Court “may not retry the facts or substitute [its] view of
the facts” for that of the circuit court. Armstrong v. Armstrong, 71 Va. App. 97, 105 (2019)
(quoting Bedell v. Price, 70 Va. App. 497, 504 (2019)). Further, the circuit court, as “the trier of
fact[,] ascertains a witness’ credibility, determines the weight to be given to [that witness’]
testimony, and has the discretion to accept or reject any of the witness’ testimony.”
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Khalid-Schieber v. Hussain, 70 Va. App. 219, 234 (2019) (quoting Street v. Street, 25 Va. App.
380, 387 (1997) (en banc)).
The husband argues in part that any award of the pre-embryo to the wife was a de facto
unconstitutional governmental intrusion on his constitutional right to procreational autonomy
because the state did not have a compelling interest at stake. See generally Hawkins v. Grese, 68
Va. App. 462, 471 (2018) (explaining that the Fourteenth Amendment protects individuals from
government interference with parental rights absent a compelling state interest). However, in his
contract with the wife and the fertility clinic, the husband agreed that in the event of divorce,
“the ownership and/or other rights to the embryo(s)” would be “directed by a court decree and/or
settlement agreement.” Further, in his complaint for divorce, the husband specifically asked the
circuit court to distribute the pre-embryo as marital property. After inviting the court to
distribute the property, he was then unsatisfied with the disposition and now argues that the
circuit court action regarding the pre-embryo was an unconstitutional governmental intrusion.
We conclude that the husband cannot complain of undue government interference with his
constitutional right after specifically asking the circuit court to intervene.8 See Rowe v.
Commonwealth, 277 Va. 495, 502 (2009) (holding that a party may not complain about an issue
on appeal where he “approbate[s] and reprobate[s] by taking successive positions in the course of
litigation that are . . . inconsistent . . . or mutually contradictory” (quoting Cangiano v. LSH
8 The husband also contends for the first time on appeal that the circuit court erred by
misapplying Code § 20-107.3(E), the equitable distribution statute, by failing to consider any of
the factors listed in the statute. However, he did not make this argument below. See
Rule 5A:18; Johnson v. Commonwealth, 58 Va. App. 625, 637 (2011) (“Making one specific
argument on an issue does not preserve a separate legal point on the same issue for review.”
(quoting Edwards v. Commonwealth, 41 Va. App. 752, 760 (2003) (en banc), aff’d by
unpublished order, No. 040019 (Va. Oct. 15, 2004))). Accordingly, this argument is barred
pursuant to Rule 5A:18, and we do not consider it on appeal. See Tackett v. Arlington Cnty.
Dep’t of Human Servs., 62 Va. App. 296, 315 (2013).
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Bldg. Co., 271 Va. 171, 181 (2006))); Logan v. Commonwealth, 47 Va. App. 168, 172 n.4
(2005) (en banc) (explaining that an appellate court may accept a legal concession as a waiver).
See generally Palmyra Assocs., LLC v. Comm’r of Highways, 299 Va. 377, 386-87 (2020)
(describing the invited error doctrine).
The husband also contends that the circuit court abused its discretion in awarding the
viable pre-embryo to the wife by applying “an incorrect . . . analytical approach.” This case
presents the first time an appellate court in Virginia has been called upon to resolve a dispute
over the award of a preserved pre-embryo.9
Other states addressing the matter have generally
recognized three approaches in determining distribution: contemporaneous mutual consent,
contractual, and balancing. Under the contemporaneous mutual consent approach, the
pre-embryos must remain in storage until the parties agree to a disposition. Bilbao v. Goodwin,
217 A.3d 977, 985 (Conn. 2019); In re Marriage of Witten, 672 N.W.2d 768, 777-78 (Iowa
2003). If they cannot agree, then the status quo is maintained, and “the pre-embryos remain in
storage indefinitely.” Bilbao, 217 A.3d at 985. The contractual approach provides that a
pre-existing agreement between the parties regarding the disposition of preserved pre-embryos is
“presumed valid and enforceable.” See, e.g., id. at 984, 992 (determining that the parties had an
enforceable agreement); Kass v. Kass, 696 N.E.2d 174, 179 (N.Y. 1998) (holding that the
parties’ agreement controlled). The balancing approach requires a circuit court to weigh the
parties’ respective interests in the pre-embryos. Bilbao, 217 A.3d at 985.
9 Numerous scholars have recognized this emerging issue. See, e.g., I. Glenn Cohen, The
Constitution and the Rights Not to Procreate, 60 Stan. L. Rev. 1135 (2008); Elizabeth A. Trainor,
Right of Husband, Wife, or Other Party to Custody of Frozen Embryo, Pre-embryo, or
Pre-zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R.5th 253 (2001); Susan
B. Apel, Disposition of Frozen Embryos: Are Contracts the Solution?, Vt. B.J., Mar. 27, 2001, at
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The exceedingly rare mutual consent approach is disfavored. See, e.g., Jocelyn P. v.
Joshua P., 250 A.3d 373, 405 (Md. Ct. Spec. App. 2021); In re Marriage of Rooks, 429 P.3d 579,
592 (Colo. 2018); Reber v. Reiss, 42 A.3d 1131, 1136 (Pa. Super. Ct. 2012). But see Witten,
672 N.W.2d at 783 (using this approach); cf. McQueen, 507 S.W.3d at 145-47 (affirming award
of joint ownership to both of the spouses using the balancing approach). Most jurisdictions that
have considered the approach have held it to be impractical and unworkable. See, e.g., Jocelyn
P., 250 A.3d at 405; Rooks, 429 P.3d at 592; Reber, 42 A.3d at 1136. As the Colorado Supreme
Court persuasively explained, “[i]t is . . . unrealistic to think that parties who cannot reach
agreement on a topic so emotionally charged will somehow reach resolution after a divorce is
finalized.” Rooks, 429 P.3d at 592.
In contrast, the contractual approach, which recognizes the validity of a contract between
the parties as governing the disposition of preserved pre-embryos, is embraced by the majority of
jurisdictions that have addressed the issue. See Jocelyn P., 250 A.3d at 381; Bilbao, 217 A.3d at
986, 992; Szafranski v. Dunston, 34 N.E.3d 1132, 1147 (Ill. App. Ct. 2015); In re Marriage of
Dahl & Angle, 194 P.3d 834, 840 (Or. Ct. App. 2008); Roman v. Roman, 193 S.W.3d 40, 48
(Tex. App. 2006); Kass, 696 N.E.2d at 180; Davis v. Davis, 842 S.W.2d 588, 598 (Tenn. 1992),
petition to rehear granted in part, No. 34, 1992 WL 341632 (Tenn. Nov. 23, 1992) (per curiam).
But see Witten, 672 N.W.2d at 781 (rejecting this approach); A.Z. v. B.Z., 725 N.E.2d 1051,
1057 (Mass. 2000) (noting that it would not uphold an agreement between the parties if it “would
compel one donor to become a parent against his or her will”).
In the absence of such an agreement through contract, courts commonly use the third
approach, which balances the parties’ competing interests. See, e.g., Jocelyn P., 250 A.3d at
380; Rooks, 429 P.3d at 593-94; Davis, 842 S.W.2d at 603-04. “Recognizing a couple’s
cryogenically preserved pre-embryos as marital property of a special character, the underlying
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principle that informs [the] balancing test is autonomy over decisions involving reproduction.”
Rooks, 429 P.3d at 593 (citation omitted).
In determining the best approach to resolving this case, we recognize and make clear that
the disposition of the viable pre-embryo implicates both parties’ constitutional rights. See, e.g.,
Obergefell v. Hodges, 576 U.S. 644, 666 (2015) (recognizing that choices related to procreation
are constitutionally protected); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of
privacy means anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child.”); McQueen, 507 S.W.3d at 144 (discussing the right
to procreational autonomy in the context of a dispute over frozen pre-embryos); Davis, 842
S.W.2d at 598 (holding that resolution of the disposition of a pre-embryo “turns on the parties’
exercise of their constitutional right to privacy”).
If the parties are able to reach an agreement on the disposition of the pre-embryo, as
required by the mutual consent approach, that agreement would certainly alleviate any
constitutional concerns. However, we join with the circuit court and the courts in other
jurisdictions that have recognized this approach as impractical. See, e.g., Rooks, 429 P.3d at
592; see also Reber, 42 A.3d at 1135 n.5 (holding that the mutual contemporaneous consent
approach is “totally unrealistic” because “[i]f the parties could reach an agreement, they would
not be in court”). Further, “the mutual contemporaneous consent approach,” by permitting
disposition of the pre-embryos only if the parties reach an agreement, “gives one party a de facto
veto over the other party by avoiding any resolution until the issue is eventually mooted by the
passage of time.” Rooks, 429 P.3d at 589. As the circuit court explained here in rejecting the
mutual consent approach, “making [the parties] decide later is making no decision at all.”
Consequently, we too reject this approach.
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A contract entered into by the progenitors before their separation or divorce would also
alleviate constitutional concerns and serves as a more traditional, equitable, and realistic
approach. Generally, a party can knowingly and voluntarily waive a constitutional right through
a contract. Burke v. Burke, 52 Va. App. 183, 188 (2008). In addition, Virginia law favors
marital property settlements. Code § 20-109.1; Griffin v. Griffin, 62 Va. App. 736, 753 (2014),
aff’d, 289 Va. 189 (2015). See generally Colleen M. Quinn & Mary McLaurin, Who Gets Our
Future Children? The Need for Execution of Separate Embryo Disposition Agreements, 41
Va. Fam. L. Q. 7 (Fall 2021) (urging progenitors to create a separate agreement for pre-embryo
disposition). Preexisting agreements regarding pre-embryos “‘promote serious discussions
between the parties prior to participating in [IVF],’ . . . ‘minimize misunderstandings’ that
might arise in the future, provide certainty for progenitors, . . . and decrease the likelihood of
litigation.” Bilbao, 217 A.3d at 986 (first quoting Szafranski v. Dunston, 993 N.E.2d 502, 515
(Ill. App. Ct. 2013); and then quoting Kass, 696 N.E.2d at 180). We hold that if a contract
exists, it should be the controlling mechanism to resolve the dispute.
Absent such a contract, a court should employ the balancing approach, which balances
the parties’ interests to best respect their opposing constitutional rights. See McQueen, 507
S.W.3d at 144-45. We agree with this approach because it addresses constitutional concerns by
taking the parties’ competing constitutional interests into account. See id.
Having explained the proper framework of a blended approach, looking first for a
contract and then, absent such, conducting a balancing of factors, we turn to this case. In
resolving the dispute before this Court, we first consider whether the parties had an agreement
controlling the disposition of the pre-embryo. Absent such an agreement, the next step in the
analysis is to balance the parties’ interests.
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A. Did the Parties Have a Controlling Agreement?
The only relevant contract here is the parties’ agreement with Dominion Fertility, the
fertility treatment center that they contracted with to develop and store the pre-embryos. That
agreement provides that in the event of the parties’ divorce, “the ownership and/or other rights to
the embryo(s) will be as directed by a court decree and/or settlement agreement.” This contract
clearly does not purport to represent an agreement between the parties regarding the disposition
of any remaining pre-embryos in the event of the parties’ divorce. In fact, to the extent it is
relevant at all, it points directly to a divorce decree or settlement agreement in court.
A question that has arisen in this context is whether a party’s agreement to contribute
biological material for fertility purposes constitutes a binding agreement to permit the use of that
material for purposes of procreation even in the event of separation or divorce.10
In this case, the
parties did not discuss the allocation of the pre-embryos in the event of their divorce. The wife
testified that the subject arose when the parties signed the contract with the clinic but, instead of
discussing the issue, they simply agreed that they would not divorce. The husband testified that
his intent in entering into IVF was to raise a child in a “nuclear family.” The husband’s
participation in the IVF process, by itself, did not establish that he agreed for each of the
resulting viable pre-embryos to be used for reproductive purposes. See Davis, 842 S.W.2d at
591 (rejecting a bright-line rule inferring “from the parties’ participation in the creation of the
10 The husband argues that the circuit court erred in concluding that he waived his
constitutional rights in this regard by participating in IVF. Without deciding whether the circuit
court actually made this determination, we recognize that “[w]aiver is an intentional
relinquishment of a known right.” See Va. Polytechnic Inst. & State Univ. v. Interactive Return
Serv., Inc., 267 Va. 642, 651 (2004) (quoting Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68,
74 (1983)). Nothing in the record here supports a conclusion that the husband intentionally
waived his constitutional interest in his biological material by submitting it for IVF. See, e.g.,
Rooks, 429 P.3d at 592 (“We do not interpret a party’s commencement of the IVF process, on its
own, to establish the party’s automatic consent to become the genetic parent of all possible
children that could result from successful implantation of the pre-embryos.”).
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embryos that they had made an irrevocable commitment to reproduction”). See generally Code
§ 20-158(C) (recognizing that divorce likely changes the progenitors’ mutual intent to become
parents that existed when the pair began the IVF process).
Based on the record, we conclude that the parties did not have an agreement in place
addressing the disposition of any remaining pre-embryos in the event of a divorce.11
B. Balancing the Parties’ Interests
In light of the impracticality of the mutual consent approach and the absence of a contract
between the parties, the balancing test is the appropriate lens through which to analyze this
The balancing test attempts to best resolve conflicting constitutional concerns when the
parties disagree on what to do with preserved pre-embryos. 13
This type of dispute impacts the
constitutional right regarding procreational choice of both of the genetic donors. See Obergefell,
576 U.S. at 666; Jocelyn P., 250 A.3d at 391 (“At its core, reproductive autonomy ‘is composed
of two rights of equal significance—the right to procreate and the right to avoid procreation.’”
(quoting Davis, 842 S.W.2d at 601)).
Balancing the parties’ respective interests in preserved pre-embryos requires
consideration of numerous factors. Those circumstances include the parties’ intended use for the
11 Because no agreement existed, a decision in this case does not require resolution of
what type of agreement is necessary to bind the parties in this context. See Commonwealth v.
Swann, 290 Va. 194, 196-97 (2015) (applying best and narrowest ground principles). See
generally Jocelyn P., 250 A.3d at 404 (holding that such an agreement must express the actual
intent of the parties and not merely contain boilerplate language from a third party such as a
fertility center); Bilbao, 217 A.3d at 989 (holding that a written contract between the parties and
the fertility facility was enforceable between the parties); Szafranski, 34 N.E.3d at 1147-48
(upholding an oral contract); J.B. v. M. B., 783 A.2d 707, 714 (N.J. 2001) (holding that a written
contract was necessary).
12 We note that balancing the interests of the parties is appropriate under these facts
because the parties agreed that the pre-embryo is property.
13 Depending on the particular case, the facts and circumstances may warrant a joint
award of pre-embryos to the parties. See McQueen, 507 S.W.3d at 156-59.
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pre-embryos, their “original reasons for undergoing IVF,” “the reasonable ability” of the party
seeking the pre-embryos to have biological “children through other means,” and “the potential
burden on the party seeking to avoid becoming a genetic parent.” Jocelyn P., 250 A.3d at 380;
see also Rooks, 429 P.3d at 593-94; Davis, 842 S.W.2d at 603-04. In addition, courts should
consider the possibility of a party’s “bad faith and attempt to use the frozen pre-embryo[s] as
leverage in the divorce proceeding.”14
Jocelyn P., 250 A.3d at 380. Finally, the court should
consider any other factors pertaining to the parties’ procreational autonomy. McQueen, 507
S.W.3d at 146-47.
The record does not reflect that the circuit court adopted the balancing approach. When
asked to specify the approach it was taking, the court did not do so. Although the court noted
that it considered “the equity of the positions of the parties” in evaluating their interests in the
pre-embryo, comments such as referencing the wife’s “right” and the husband’s “wish” reflect
confusion as to the law. Several places in the record reflect that confusion and lack of clarity.15
Having established the appropriate framework for the circuit court to employ, we remand
this case for the court to make a determination in accordance with this opinion.16
We note that in
14 Further, we conclude that in balancing the parties’ interests, a court should not
“consider . . . ‘reasonable alternatives,’ such as adoption, available to the party seeking to
become a genetic parent.” Jocelyn P., 250 A.3d at 380 (quoting Rooks, 429 P.3d at 593-94).
“[T]he relevant interest at stake is the interest in achieving or avoiding genetic parenthood . . . .”
Rooks, 429 P.3d at 594. Therefore, the possibility of adoption or foster parenting does not affect
this interest. See Reber, 42 A.3d at 1138 (“There is no question that the ability to have a
biological child and/or be pregnant is a distinct experience from adoption.”).
15 Based on this record, we reject the wife’s contention that the circuit court appropriately
considered the relevant factors under the balancing framework. See generally Yarborough v.
Commonwealth, 217 Va. 971, 978 (1977) (citing the general principle that a circuit court is
presumed to apply the law correctly to the facts).
16 The husband also argues that the circuit court erred by not giving him a monetary
award commensurate with his marital share of the pre-embryo. In light of our decision to reverse
and remand for reconsideration in accordance with this opinion, we do not reach this assignment
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considering the relevant factors, the court “is not required to quantify the weight given to each
[one], nor is it required to weigh each factor equally.” See Marion v. Marion, 11 Va. App. 659,
664 (1991) (discussing generally the equitable distribution factors in Code § 20-107.3). Instead,
the court must balance the parties’ respective interests in the preserved pre-embryo by
considering the various relevant factors.
Outcome: We have now established the appropriate analytical framework for deciding how to
award a viable pre-embryo under this specific set of facts. The trial court on remand should consider the relevant factors as it balances the merits of awarding the pre-embryo, including any current or additional evidence that exists relevant to the balancing approach. See generally Vilseck v. Vilseck, 45 Va. App. 581, 592 (2005) (ordering that the record be reopened on remand). Therefore, the trial court’s judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.