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The court battle between actress Sofia Vergara and her ex-husband, Nick Loeb was recently big news. Years ago, Vergara and Loeb created two embryos through in vitro fertilization (IVF) and froze them, agreeing to keep them in storage. After Vergara and Loeb broke up and divorced, they disagreed about the outcome of the embryos. Loeb wanted the embryos implanted through a surrogate pregnancy and brought to term, which would produce biological children of Vergara and Loeb. Vergara wished to keep the embryos frozen for the time being. Loeb initially filed in California, but the case was dismissed. Next, he sued in Louisiana on behalf of the embryos and moved for custody of the frozen embryos.

Vergara and Loeb’s legal conflict demonstrates several legal questions with which courts have recently had to contend: Who decides what happens to frozen embryos after a couple separates? If the parties disagree, who has the final say? If the court must decide, how does the court decide whether the embryos are implanted, kept frozen, or destroyed? Who gets “custody” of them? What interests must the court weigh?

In Vergara’s case, a Louisiana judge granted a motion to dismiss against Loeb, denying his request for custody of the frozen embryos. Similar court battles have been waged in other states. In Washington, a couple had also created two embryos and had them frozen. During the divorce, the husband wanted to place the children born from the embryos for adoption, while the wife wanted to raise any children born from the embryos herself. The husband won that court case and was awarded custody of the embryos.

In a similar Michigan case, a wife wanted to use frozen embryos to have more children while the husband objected, stating he did not wish to have any more children with his soon-to-be-ex-wife. The court ruled that the husband had the right to choose not to have more children. In Illinois, a family court judge found that the custody of frozen embryos would be decided in a divorce trial, akin to a property distribution order.

Typically, couples undergoing IVF treatment are required to sign several consent forms regarding what will happened to embryos created during the process, but sometimes these contracts conflict with state law; for example, some courts have ruled these agreements to be unenforceable, as “agreements to enter into familial relationships” often are.

IVF has been available for several decades, but the law has yet to catch up. Only three states have enacted legislation on the subject, and there is no federal law for other states to use as a guideline. Florida’s statute, located at F.S.A. § 742.17 states that the individuals creating the embryos and their doctor “shall enter into a written agreement that provides for the disposition of the [embryos] in the event of a divorce, the death of a spouse, or any unforeseen circumstance.” If there is no written agreement, “decision-making authority” is placed “jointly with the commissioning couple.” In the event of death of one individual, the embryos remain in the care of the other individual. This, however, provides little guidance for divorce courts if a divorcing couple cannot come to a joint resolution.

In New Hampshire, the relevant statute is N.H. Rev. Stat. § 168-B:13 through B:18 (which actually governs surrogacy), which imposes a requirement for medical examinations and counseling and setting a fourteen-day limit for the maintenance of embryos. Again, the statute provides little guidance for a family court judge attempting to determine who decides on frozen embryos.

The last of the three states with a statute is Louisiana, at LSA-R.S. 9:121-133. Louisiana is somewhat unique out of the three, as the state considers an embryo a “juridical person” and requires implantation of an embryo. Their statute states, “The use of a human ovum fertilized in vitro is solely for the support and contribution of the complete development of human in utero implantation.” Louisiana law allows for a court to appoint an attorney to represent an embryo and forbids the destruction of an embryo.

Decisions in other states have been split as to whether agreements between IVF patients and their doctor are enforceable or unenforceable. In Massachusetts, a court found an agreement formed allowing a wife to implant the embryos post-divorce was unenforceable, finding that the husband’s interest in avoiding procreation outweighed the wife’s desire to implant the embryos. In New Jersey, an appellate court upheld a decision for the destruction of embryos after a divorce when a husband wanted to keep and use the embryos. In 2008, an Oregon court ordered that frozen embryos be destroyed as part of a divorce property settlement per the couple’s prior agreement.

The New York case Kass v. Kass, which was decided in 1998, is largely-cited on this subject. The court ordered that a couple’s agreement that unused embryos would be given to a hospital for research upon their separation was upheld. The court held that a contract between parents regarding the disposition of embryos is presumed valid and binding and should be upheld if the parents later have a disagreement. The court reasoned that it was better for the parents to decide what happens to the embryos as opposed to a judge, so it would uphold the parents’ agreement.

With some exceptions, the general trend in the courts appears to be that when two parties cannot agree on the disposition of frozen embryos, the parent who does not want the embryos implanted generally prevails, indicating that courts give more weight to a party’s wish to avoid parenthood.

While IVF is not uncommon, what will happen to frozen embryos when a couple divorces will vary based on several factors, including the State in which the parties live, the religious or other personal beliefs of both parties, and, possibly, the opinion of the judge who happens to preside over that case. The matter can be political and contentious, and an experienced family law attorney can help a litigant who is facing this issue make the strongest arguments possible to represent that litigant’s wishes as to the disposition of frozen embryos during a divorce or separation.

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