Businessman Nick Loeb -- perhaps best known for his supporting role in the short-lived series “I Was Sofia Vergara’s Fiancé” -- faced "Today" show cameras this spring and calmly made his case to the American public: Even though he and Vergara signed paperwork stating they would only use their frozen embryos if they both agreed to it, Loeb wanted a court to effectively throw the agreement away, and grant him legal control of the embryos.
Using network airtime, and space on The New York Times op-ed page, Loeb insisted that a court should disregard his signature, and think instead of “moral, legal ethical concepts … about lives we’ve already created,” claiming, "keeping them frozen forever is tantamount to killing them."
No word yet on the resolution of this high-profile battle, but legally, Loeb faces slim odds.
“Predicting based on precedent would mean he loses,” notes Susan Crockin, an expert in reproductive technology law at Georgetown Law Center's O'Neill Institute for National and International Health Law. For one thing, there’s the agreement he and Vergara signed. Then, “there’s no compelling personal story" of the sort that has previously convinced courts.
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So far, the compelling personal story has been an effective tactic in court. In fact, two state courts have granted women the right to use embryos despite their former partners’ disapproval. And in both cases, the women seeking the embryos were battling cancer.
In Illinois this spring, an appeals court gave Karla Dunston, a nurse diagnosed with non-Hodgkin’s lymphoma, permission to get pregnant using frozen embryos she and her ex-boyfriend, Jacob Szafranski, created while they were in a relationship. Szafranski originally supported Dunston’s plan, even after they split, but then -- influenced by the opposition of a new girlfriend -- he changed his mind. Szafranski and Dunston never signed a contract, but the court decided that their conversations about the plan were enforceable anyway.
In 2012, a Pennsylvania court allowed Andrea Reiss, a breast cancer survivor, to use embryos she created while married to her ex-husband, Bret Reber, over his objection.
Reiss' story, told in court papers, is heartbreaking. She was diagnosed at age 36 and postponed her cancer treatment to make time for IVF. Then, Reiss endured two surgeries, eight rounds of chemo and 37 rounds of radiation. Reber filed for divorce and had a child with another woman. (Unfortunately, neither of them had signed the portion of the IVF form with instructions about how to proceed if they divorced.)
But should Reiss' challenging situation, or Dunston’s, grant her the authority to unilaterally use the embryos created with her ex? Should a would-be parent’s personal situation matter more than the mutually agreed-upon paperwork?
Crockin cautions that these courts' decisions are not necessarily a trend — courts in other states may reach different results. In fact, a California judge will soon decide another embryo battle between breast cancer survivor Mimi Lee, who wants to use frozen embryos, and her ex-husband, Stephen Findley, who objects. And this time, the result may well be different.
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Both Lee and Findley signed forms agreeing to discard the embryos if they divorced. Their IVF center even argued in support of the husband; it wants to be sure its agreements are enforceable in court.
So then how can would-be parents avoid this kind of excruciating battle?
Crockin suggests couples sign paperwork with their IVF clinics, and potentially even sign a separate agreement between themselves, that is “extremely clear and unambiguous” about possible worst-case issues, including divorce and cancer. The document, Crockin says, should describe how to resolve any future disagreements. While there's no guarantee that it will be enforceable, she says, it will certainly help.
The other way to avoid a fight? It’s medical, not legal: Keep an eye on evolving technology. Advances in egg freezing mean that would-be parents should soon be able to freeze eggs and sperm separately with the same likelihood of success as creating an embryo. “It’s not romantic,” says Crockin, “but it’s safer.”
Lisa Green is an MSNBC legal analyst and author of "On Your Case: A Comprehensive, Compassionate (and Only Slightly Bossy) Legal Guide for Every Stage of a Woman's Life."