Legal Agreements Must Cover All Scenarios—Even If It Hurts

A lawsuit filed against actress Sofia Vergara by her ex-fiancé has shone a bright light on assisted reproductive technology recently, calling attention to the legal pitfalls that can emerge unless careful precautions are taken to cover all potential circumstances—even those that are painful to consider.

As reported by CNN, a man said to be Vergara’s former fiancée, Florida entrepreneur Nick Loeb, identified only as John Doe, filed suit last August against a fertility clinic and a woman, identified as Jane Doe, said to be Vergara. The suit seeks to preserve two cryopreserved embryos created by the couple in November 2013. Numerous media outlets have identified the John and Jane Doe named in the suit as Loeb and Vergara, who separated in May 2014 after a nearly two-year engagement. The CNN report cites fertility expert Dr. David Tourgeman explaining that cryopreserved, or frozen, embryos can last “an infinite amount of time” and could easily remain viable at the resolution of a lengthy legal case.

The case law in this area (which is ever-evolving) GENERALLY says that the court will likely look to the parties’ written agreements. Although in this case the intended parents had agreed on disposition of the embryos in the event one of them died, there was no agreement made for how the embryos would be treated should the couple separate. In this situation, case law says the parties’ respective procreative interests will be balanced. In other words, the objecting party’s right NOT to procreate will be balanced against the other party’s right TO procreate. The preference in that balance thus far has been to rule in favor of the party who does NOT want to procreate, taking into consideration, however, whether the opposing party has any other viable means of biologically procreating. If the party wanting to use the embryos has no other viable means to procreate to have his/her own biological child, then she/he MIGHT be allowed to use the embryo for that purpose, even against the other party’s objection. However, if both parties remain fertile and able to procreate biologically with someone else later on, a court is unlikely to force someone to procreate against his/her will.

If both parties remain fertile and able to procreate biologically with someone else later on, a court is unlikely to force someone to procreate against his/her will.

And of course when considering any assisted reproduction/fertility treatments, one should carefully review the medical consent forms (preferably with an attorney) and make sure the future disposition of remaining genetic material is thoroughly addressed… and that you’ve covered what happens to that genetic material in the event of death, divorce or dissolution of the relationship.

Rich Vaughn
Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.


Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.