01 May 2015 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.