Whose Embryo Is It Anyway?

Assisted Reproductive Technology as Hollywood-Worthy Drama

The case of Sophia Vergara versus her ex-fiancé over their frozen embryos may be one of the stranger breakup stories to come out of Hollywood…but one that could educate countless couples wading into the complex world of reproductive technology.

Using Assisted Reproductive Technology – or “ART” – begins as a dream.  A loving couple plans for a future family. They spend money, time and effort to make the child of their dreams a possibility through modern medicine. They freeze fertilized embryos, giving themselves the very best chance of success.

But what happens to those frozen embryos if the love cools and the dream ends?

If you are celebrity Sophia Vergara, it means a long public battle with Nick Loeb over the right to use the fertilized eggs, with Vergara accusing her ex of seeking publicity while Loeb maintains each embryo is a “human being” and that keeping them frozen is “tantamount to killing them”. It is the dark, painful side of an old dream now playing out as a Hollywood drama “based on true events”.

So whose embryo is it anyway?

You should know the answer before the question ever comes up. It’s not as fun as researching baby names, but deciding to use Assisted Reproductive Technology requires legal planning, because creating frozen embryos also creates unsettled inheritance rights and responsibilities.  That’s right.  Estate planning for children that don’t yet exist.  Although Doctors typically provide Informed Consent forms detailing who owns the embryos, they may not be considered legally binding in court.  Don’t assume you’re automatically protected. Fact is most state laws have not kept pace with scientific and technological advances.  Courts will look at a several factors to make a determination: (1) Is there a contract, or, if not (2) is there mutual consent or (3) the court will balance the right to procreate versus the right not to procreate and consider the facts specific to this case.

Step one of your fertility planning has to include researching probate and ART laws in YOUR state, because laws differ across state lines, even delineating differences in cases where half of the couple dies.  Your estate planning should include what to do with that hoped-for child still in a frozen embryonic state.  What happens to those frozen embryos if one or both would-be parents die, divorce or are incapacitated? Does anyone still have the right to use the embryos? And under what conditions?

The questions may be tough, but they’re designed to minimize heartache and drawn-out drama, like the contract-less situation unfolding between Vergara & Loeb.  They should’ve but didn’t predetermine what would happen if they split up or if one or both of them had died or become incapacitated.

Attorneys who specialize in fertility & reproductive issues like Leslie Schreiber, P.A. recommend drawing up a contract that clearly details what should happen to frozen embryos in the case of death, divorce or incapacity, when utilizing surrogacy or egg or sperm donors. She will advise you when you need a local estate planning attorney and can refer you to qualified professionals in your area.

Agreements should detail exactly what happens to frozen embryos & possible future children if the would-be parents don’t get the Hollywood happy ending they hoped for.  But in an uncertain world where couples take big leaps, it is comforting to definitively know the answer to one question:  Whose embryo is it anyway?