Sofia Vergara, star of the sitcom Modern Family, is currently in legal battle with her former fiancé, Nick Loeb over the fate of two cryopreserved embryos created through in vitro fertilization six months prior to their split. Loeb filed a lawsuit back in August 2014, which was recently amended in April 2015, under the pseudonym of John Doe, seeking to prevent the destruction of the embryos created with Vergara. Vergara wants the embryos destroyed, and she signed paperwork to that effect back in November 2013. California has no controlling law on the issue of embryo disposition.
The legal battle between Loeb and Vergara is a case of first impression in California. In this case, the court must ask if Vergara’s interest in not having a child is more important than Loeb’s interest in having one. The legal issues involving embryo ownership are very complex and require courts to grapple with the question of whether they can force someone to be a parent against his or her wishes. Additionally, there is no universally accepted definition of an embryo or classification of embryos as property, quasi-property or otherwise, which may impact the level of scrutiny a court may give an embryo disposition case.
States have taken a variety of approaches to embryo disposition. A recent case from Illinois demonstrates the intricate legal and emotional issues involved in adjudicating embryo disputes. In 2013, the Illinois Appellate Court case held in Szafranksi v. Dunston that the most important factor in determining embryo rights is the previous agreement of the parties. In that case, the court determined that an agreement by the parties on the disposition of the embryos made at the time of creation should be honored. If the parties each did not have an agreement, then the court must then use a balancing test to determine the relative interest of each party in the embryos. In Szafranski, the court upheld an agreement allowing either party to use embryos without the other’s consent. In ruling, the court noted that the agreement is presumptively valid and that the woman’s inability to have a child after chemotherapy treatments was a compelling interest in her favor.
While Illinois has taken a hybrid approach to embryo disposition, there are other approaches to consider. Some jurisdictions have used a strict contractual approach, yet this assumes that the IVF Clinic forms are complete and thorough and clear. Other courts require only a balancing of interests, which could lead to a subjective assessment of the facts. At least one court, Massachusetts, has rejected that contracts could be made at all regarding embryo disposition. Finally, several courts require contemporaneous mutual agreement as to the use of the embryos at the time of implantation, which could easily allow one party to block the efforts of another.
What is clear is that all too often IVF clinics infrequently advise patients to consult with an attorney regarding embryo use and disposition before accepting executed clinic forms. Given the importance of agreements in many courts’ approaches, clinics should take steps to ensure that they are proactively inquiring about their patients wishes prior to accepting forms.