The star of the sitcom series “Modern Family”, Sofia Vergara, and her former fiancé, Nick Loeb, have been locked in a court battle regarding eggs fertilized by his sperm. During their relationship, Ms. Vergara had a number of her embryos fertilized by Mr. Loeb’s sperm.
After the breakup, the parties have been fighting in court as to what should happen to the embryos. Ms. Vergara is willing to leave the embryos frozen indefinitely, as she has no desire to have children with Mr. Loeb. However, Mr. Loeb would like to have the embryos implanted in a surrogate and have the pleasure of raising them. A contract the couple signed at a fertility clinic requires an agreement between the two to determine the future of the embryos should there be a dispute in the event the couple could not agree to their distribution. Recently, Mr. Loeb has amended his complaint arguing that the embryos are viable entities of themselves and should be treated as independent litigants or people in this litigation.
Vergara had her embryos harvested to participate in a process called in vitro fertilization (IVF). IVF is a series of procedures involving the extraction of eggs from a woman’s body, combining them with the sperm from a significant other or donor in a laboratory, and then placing them in her uterus or the uterus of a surrogate. More than 600,000 cryo-preserved embryos exist within the United States according to the U.S. Department of Health and Human Services. Consequently, the issue of disputes over frozen embryos and what should be done with them is becoming more and more common.
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The issues surrounding embryos can be troubling. Is an embryo alive? Is an embryo property? Does it combine the qualities of both? Is it something in between? Can an embryo be disposed of via a contract? These issues become even more volatile in a political or judicial conversation because they are very close to the issues involved in abortion. Many state legislatures have yet to tackle the delicate questions presented by advances in fertility, science and in the issues concerning embryos. Even those statutes which exist often do not answer all questions.
Despite the weighty issues involving embryos, most fertility clinics only require the couples to sign some sort of a boilerplate “consent agreement” or contract regarding IVF procedures, including disposition of their embryos. However, many of those contracts have holes in them and do not cover all the disputes that arise upon the couple’s unexpected divorce or separation.
Consequently, there is no settled case law in the United States regarding issues surrounding embryos. However, existing case law attempts to avoid addressing the inherent controversy surrounding the disposition of frozen embryos by applying contract law in interpreting the “consent agreement” from fertility clinics. Existing decisions seem to fall into these categories:
- Existing contracts: The parties have signed a contract and the language in the contract is clear, then the parties are bound by the language of the contract;
- No contract or ambiguous language in “consent agreement”: Courts will generally look at the constitutional rights of the battling parents as part of the constitutional right of privacy, either genetic parents has an absolute right to prevent the implantation of any frozen embryo. That right is even stronger than the right of the other parent to have the embryo implanted and the child born; and
- Infertility exception: However, there is a line of cases which indicates a narrow exception to this rule. It is possible that the right to bear a child might control the weighting of the right to privacy of both parents if implementation is literally the only way in which the parent will ever be able to have a child.
Consequently, it would appear that the court would look first at the consent contract signed by Ms. Vergara and Mr. Loeb. If the language of that contract is unambiguous, then the court will follow the language of the contract. In the event that the language is ambiguous or does not cover the situation presented by the dispute between Ms. Vergara and Mr. Loeb, then the court will probably permit Ms. Vergara’s request to prevail. In other words, the court will not request Ms. Vergara to become a parent against her will.
Depending on the statue in which the litigation is pending, if Mr. Loeb cannot sire children he may be able to argue the exception in the above-stated analysis. The above having been said, the law often is never clear-cut and exceptions are being made all the time. In any event, it’ll be interesting to watch how Ms. Vergara and Mr. Loeb handle this modern family problem.
Board Certified Marital and Family Law Attorney Charles D. Jamieson focuses on high net worth cases while delivering excellent personal service. To discuss issues related to family law, please contact The Law Firm of Charles D. Jamieson, P.A. or call 561-478-0312.
