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Who Should Have Custody of the Embryos?

Medical science has come a long way in the past hundred years. With these changes to science and society come changes to the law. This includes family law, as you will soon see. Many couples today that have had trouble conceiving, or who want to save embryos for when they are ready to have children will create and freeze them with reproductive clinics. While this provides people with more options when it comes to having children, it can also present some interesting legal challenges.

More Common than You Might Think

Today, there are millions of frozen embryos in the United States. The legal disputes over who owns and has the rights to those cases are naturally rising, as well. Over the years, there has been a range of cases dealing with the legal rights to embryos. The cases and the results have been quite varied.

Judges will often rule in favor of the person who does not want the frozen embryos to be used. There have been cases where the embryos are destroyed, as well as a case where they were donated rather than having the wishes of either member of the clashing parties fulfilled.

In some instances, the embryos would be considered a piece of property that would have to be divided during a divorce. This is similar to what will sometimes happen with pets in a divorce. Of course, it can be difficult to think of embryos, or pets for that matter, as pieces of property.

Still, that’s often the way the judges will look at the cases. It’s important to keep in mind that if this is what happens, different states have varying ways that they look at and divide the property.

In 2018 in Arizona, there was a law that went into effect that was the first of its kind in the country. It said that when there was disputed custody of embryos, they would be given to the party that wants to develop them to birth. This law stemmed from the aftermath of the case of Ruby Torres and John Joseph Terrell.

They had seven frozen embryos in storage that were created before they were married. The couple signed a contract that stated the embryos were their joint property. Torres underwent chemotherapy and radiation treatment for her breast cancer. After the divorce, Torres wanted to use the embryos to have a baby because she believed that the embryos were likely the only chance to have biological children because she was infertile. However, Terrell and Torres were divorced by this time, and he said that he did not want to have a child with Torres.

Initially, the court said that Terrell’s right not to want to be a father overrode Torres’ right to want to be a mother. The Court of Appeals overturned the decision later. They eventually ruled that the embryos would be donated to a third party.

The 2018 law, which is not retroactive and can’t apply to Torres, changed things for these circumstances. It provided the mother with legal rights to the embryos. However, the law also states that the father will no longer be financially responsible if the mother decides to use the embryos. This new law brings up a lot of questions that are not easy to answer.

Even though the father may not be financially responsible for the child, they will still know that they have a child in existence. What if they decide they want to be in the child’s life at some point? What does it mean for abortion rights? If an embryo that is a few days old before it is frozen is considered a child, what about an embryo that is in utero for the same period of time?

The Case of Vergara and Loeb

Celebrities have even had legal issues with frozen embryos. The case of Sofia Vergara and her former fiancé Nick Loeb is one such case that has spanned close to seven years. The couple had created frozen embryos when they were together in 2014. They were engaged but not married at the time of the creation, and they broke up shortly thereafter. However, they still had the embryos, and it turns out that Loeb wanted to have access to them.

This led to a major battle between the two. In 2017, Vergara filed legal documents in California to block Loeb from using the embryos without her written consent. In March of 2021, the judge cited in Vergara’s favor citing the Form Directive that both she and Loeb signed at the fertility clinic. This form states that both parties need to agree before anything can be done with the embryos. The judge said that any attempt to use the embryos would violate the Form Directive that the couple had both willingly signed.

Loeb claimed that there was an oral agreement between them that would allow him to implant the embryos into a surrogate to be born. However, the judge found that there were no material facts that supported that claim. The court found that “sufficient grounds exist for permanent injunctive relief.” This means that Loeb is not merely unable to use the embryos, he cannot sue on behalf of them without consent from Vergara.

Loeb breached the Form Directive when he set up a trust for the embryos in Louisiana. He wanted to get legal status for the embryos, which he believed would then help him to gain legal custody and parental rights over them.

What Should You Do?

Freezing embryos can provide couples with a means of having children when the time is right and to use a surrogate if needed. As beneficial as it can be, though, you can clearly see that there are some potential legal problems that can arise. For this reason, it is important to have legal counsel when undergoing the procedure, or if you are in a situation where you are trying to get rights to the embryos later.

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