When parties commit to the emotional journey of creating embryos and implanting them through in vitro fertilization (IVF) or using a gestational carrier, the excitement of creating new life should be balanced with practical considerations. Despite the difficulty of considering the unlikely outcomes, recent cases have illustrated how important it is to contemplate how changing relationships can affect the fate of one’s embryos.
One very high profile battle over frozen embryos has been splashed across news and entertainment networks for almost two years. Modern Family star Sofia Vergara and her ex-fiancé Nick Loeb are currently locked in a legal battle over whether Loeb is entitled to two embryos they created together before their separation. Loeb contends the embryos deserve a chance at life, while Vergara relies on an agreement they signed with the fertility clinic which clearly states that the embryos should not be brought to term without the consent of both parties. As of December 6, 2016, Vergara was sued by her own embryos in the state of Louisiana. The lawsuit asserts that the embryos are being deprived of a trust set up for them in Louisiana by Loeb. At this point it is anybody’s guess at what will happen.
Contracts and Consent
One of the earliest cases of embryo disposition was decided by a Massachusetts court, which used a combination of contract analysis and the parties’ parental interests to reach a conclusion. In this case, a couple underwent extensive IVF treatments, which yielded a successful pregnancy, and left several frozen embryos that were not implanted. After the couple’s divorce, the ex-husband sought to block his ex-wife from using the remaining embryos to have more children. The couple had signed a consent form with their fertility clinic stating that if the couple separated, the embryos would be returned to the wife for implantation. Among the reasons the court disfavored the use of the clinic’s consent form was that its purpose was primarily to explain clinic procedures and define the relationship between the couple and clinic. Additionally, there was ambiguous language that outlined what would happen if the couple “[became] separated,” which the court read to mean something different than divorce. Perhaps more troubling was that the husband signed multiple blank consent forms, and his then-wife filled in the language to suit her wishes, that the embryos be returned to her in the case of separation. The court decided in favor of the ex-husband, stressing that “even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen embryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will.”
Balancing Interests with Last Chances
A few other recent cases center around women who faced a cancer diagnosis, and the possibility that subsequent treatment could result in infertility. Each woman and their respective partners opted to undergo IVF to preserve their chance to have a biological child. All three relationships ended, and legal battles over the embryos ensued. Two of the women were awarded the embryos, while one was not.
In the Illinois case of Karla Dunston, the judge ruled in her favor, granting her the right to use the embryos. Although the parties executed an Informed Consent Agreement with the fertility clinic it was vague on the subject of embryo disposition, with the text of the agreement even recommending consultation with an attorney to address that portion of the contract. The fertility doctor that counseled the couple testified that “we feel that it’s more appropriate for them to get legal counsel to document their specific desires about disposition, and in particular, if they ultimately split up.” Dunston and her then-boyfriend consulted with an attorney, but failed to follow through and sign any of the agreed upon plans. The court reasoned that in the absence of a signed contract regarding disposition of the embryos, their oral agreement was sufficient to demonstrate that the parties intended Dunston to use the embryos in the event she became infertile.
In a Pennsylvania case, Andrea Reiss was granted the embryos she created with her ex-husband because the contract they signed at the fertility clinic lacked certain provisions. Neither party signed the portion of the contract that outlined embryo disposition in case of divorce or death, and could not reach a consensus on the matter after splitting up. The judge ruled in Reiss’s favor, citing her inability to have a biological child through other means. He stated, “In this case, because Husband and Wife never made an agreement prior to undergoing IVF, and these pre-embryos are likely Wife’s only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all . . . the balancing of interests tips in the wife’s favor.” In the absence of clear contracts, these cases primarily hinged on the inability for both women to conceive a biological child, noting that the intent of the parties from the beginning outweighed the current wishes. In a recent California case, a well-executed contract with distinct details surrounding embryo disposition, helped steer the court’s ruling. Similar to other cases, Dr. Mimi Lee wished to use the embryos she created with her ex-husband before her cancer treatment, arguing that given her age (46) it was unlikely she could have any biological children. Despite that remote possibility, the court determined that Lee had done little to prove her concern in the years between her cancer treatment and the divorce, taking no other steps to preserve her chances of having a biological child. Dr. Lee also testified that she believed the contract from the fertility clinic was merely a formality and that it could be changed, having no real legal ramifications. The judge sided with Lee’s ex-husband and upheld the contract, which stated that in the event the two divorced, the embryos were to be thawed and discarded. Given the well-executed contract, the judge was unwilling to grant Dr. Lee custody of the embryos without the consent of both parties.
Back to the Future
Vergara had filed for summary judgment (a ruling made without going to trial) in the case in California. However, according to court documents, Loeb dropped his lawsuit on December 6, 2016, after a California judge supported Vergara’s motion to force Loeb to identify two past sexual partners who both underwent abortions. Loeb appealed the decision but was denied by the appellate court. If the case had not been dropped by Loeb, and we considered the above cases, it is unlikely the court would have ruled in Loeb’s favor. Vergara and Loeb entered into a contract, which clearly defined that the embryos should not be used if the pair separated. In addition to the lack of consensus regarding the use of the embryos, Loeb has shown no evidence that he is unable to have a biological child by other means. Ultimately, there appeared to be no compelling reason for the judge to grant him the embryos. However, the matter in Louisiana is a horse of a different color. Louisiana is a traditionally pro-life state, and places embryos in a special category where they receive special protections. It will be a interesting decision, regardless of the outcome.
The bottom line is that in the area of embryo disposition, contracts matter. Typically, courts would rather rule on words that have been carefully considered and agreed upon in a signed document, instead of balancing human emotion and individual desires. Parties who are pitted against each other to battle out intended parentage in court will be left with anguish. As adverse as they may seem when compared to the emotional side of bringing a new life into the world, when these issues are considered in a context of a well-executed contract, it can prevent heartache and lengthy, expensive legal battles down the road.