The unfolding legal drama between Sofia Vergara and ex-fiance Nick Loeb, who is suing the "Modern Family" actress to bring to term two frozen embryos they created together, offers a rare view into a world where law is still catching up with science.
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As the Vergara-Loeb conflict shows, assisted reproductive technologies (ART) have ushered in an era of confusion and debate about what to do when fertility treatments don’t go as planned. And given that the divorce rate triples for couples who struggle with failed infertility treatments, it is essential that all caregivers, clinics, and institutions that may be involved with the provision of ARTs require some advance thought about what happens if a couple separates or otherwise disagrees about what to do with their jointly created embryos.
"Neither party has a right to force the other to continue with a project he or she no longer wants to continue, at least as long as the embryos remain in the laboratory, and not in the woman."'
High-profile cases like these underscore the need for written agreements that address what to do in the case of later conflict. But even then, there will be challenges for judges and the courts involved in these cases. For example, what about instances where a woman or a man has undergone subsequent treatment for cancer and is thus left incapable of producing gametes that would make it possible to be a genetic parent in the future? What if something has emerged that would question whether a person would be a fit parent, such as committing a serious crime against a child?
In Texas, one judge ruled in a divorce case that embryos are “community property” and that awarding the embryo to the wife was “just and right and a fair and equitable decision.” Later, that decision was overturned by the Court of Appeals for the First District of Texas, noting that the couple’s original contract was enforceable because it demonstrated “a voluntary unchanged mutual intention of the parties regarding disposition of the embryos upon divorce.” In another case, where there was no prior written agreement, an earlier decision to award the frozen embryos to the wife was reversed by an appeals court on the grounds that the husband had a constitutional right not to be forced to father a child.
Some couples have signed consent forms requiring both parents to agree to any release of their embryos should they divorce, and that if they cannot agree on what to do with the frozen embryos, then they would be donated to medical research. In one such case that went to trial, a Tennessee court awarded embryos to a wife and directed her to implant them in her body within a reasonable time. An appellate court reversed that decision, noting that the original embryo consent agreement should be upheld.
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These cases can also raise the question of whether or not one member of a couple should be forced to become a genetic parent against his or her will. We already have an established legal precedent in situations where, when a woman becomes pregnant through coital sex, she cannot be forced to either have or not have an abortion based upon her partner’s desires. This means, of course, that some men have become genetic parents against their will.
But when fertilization occurs outside a woman’s body, it makes ethical and legal sense that each contributor to the embryo would have an equal say in what would be done with them. If no agreement can be reached, the status quo should prevail, and they should remain frozen unless or until an agreement can be reached. Neither party has a right to force the other to continue with a project he or she no longer wants to continue, at least as long as the embryos remain in the laboratory, and not in the woman.
Embryos are not babies, but neither are they furniture. They are unique in that, with considerable effort on the part of a woman, they have the potential to become children. No state can change their status by legislation, although some will certainly try.
Judy Norsigian is the co-founder of Our Bodies Ourselves.