IFLG - Pandemic-related Surge in IVF Leads to More Disputes over Unused Embryos - Rich Vaughn

Pandemic-Related Surge in IVF Portends More Unused Embryo Custody Disputes  

The recent pandemic-related surge in in vitro fertilization will inevitably contribute to a growing number of legal disputes over the disposition of unused embryos. The best way to avoid what can be heart-wrenching conflict is a legally enforceable agreement that spells out clearly how embryos will be treated in the event of death, divorce or separation, who will have the right to decide, and who will (and will not) have parental rights and responsibilities with respect to any resulting children.

Fertility clinics across the U.S. are reporting surging rates of in vitro fertilization (IVF), as pandemic-confined individuals find themselves with more time and inclination to pursue parenthood using assisted reproduction technology, as reported recently by The New York Times, or to undertake fertility preservation measures, such as cryopreservation of eggs, sperm or embryos. The problem is, couples often are reluctant to consider that their union might not be lasting or to think about what would happen to any unused embryos created together were their relationship to end.

Fertility clinics and cryopreservation facilities routinely require intended parents to sign standard forms directing how any unused genetic material such as eggs, sperm or embryos will be used or disposed of in the event a couple separates. Although these forms have gotten more sophisticated and complete over time, they vary from facility to facility, and some are more complete and inclusive than others in covering potential scenarios.

Fertility Clinic Agreements May Be Challenged in Court

The best protection against future conflict over unused embryos is to enter into a legal agreement in which both parties agree upon their disposition and the rights and obligations of both parties are clearly stated. Unfortunately, as I told The New York Times, too many couples find themselves embroiled in a conflict fraught with emotional and financial consequences. In some cases, they may even risk being forced into parenthood unwillingly, should their former partner be allowed to bring any unused embryos to term.

We followed for several years the case of actress Sophia Vergara, whose former fiancé Nick Loeb challenged the 2013 clinic agreement (both of them signed) and attempted to gain custody of embryos they created together before separating. Loeb wanted to allow the embryos to be born via surrogate, against the wishes of Vergara, who had since married another man. After Loeb tried to move the case to Louisiana, where an as-yet untested 1986 law grants unborn embryos “judicial personhood,” the matter finally ended up back in Los Angeles Superior Court, where Vergara prevailed.

As shocking as it sounds for any court to force a person to procreate unwillingly, we reported in 2018 on a new Arizona law mandating that custody of any cryopreserved embryos be granted to the divorcing spouse who “intends to allow the in vitro human embryos to develop to birth”—even if there is an existing legal contract or medical consent form governing disposition of the embryos.

“In other words, the new law effectively renders any existing disposition agreement null and void,” I wrote. “It is a shocking, and possibly unconstitutional, infringement on a person’s right NOT to procreate.”

The Arizona law has not yet been tested in court. Another embryo custody dispute, Terrell v. Torres, is what spurred the (likely unconstitutional) legislation.

The clinic agreement, signed by both parties in 2014, stipulated that in the event of the couple’s separation, the couple would either mutually agree that one of them could use the embryos they created together via IVF to have children or donate the embryos for use by another couple.

After the couple’s divorce in 2017, the father was unwilling to have the embryos brought to term. At first, the family court ruled that the embryo disposition consent forms were clear and should be honored and that the embryos should be donated. The Appeals court reversed that decision, saying the forms were not clear and had internally conflicting provisions: one provision said mutual consent was required; and one provision said the parties agreed a court decree and/or settlement agreement will be presented to the Clinic directing use to a) achieve a pregnancy in one of us or b) donation to another couple for that purpose. The Appeals Court awarded the embryos to the mother, who wanted to use the embryos to attempt pregnancy.

Ultimately, the Arizona Supreme Court reversed the Court of Appeals and affirmed the family court, but for slightly different reasons—ruling that the initial provision requiring mutual consent must be given more weight, i.e., that the two intended parents agreed to one of two possible outcomes: either (1) reach an agreement between themselves, or (2) donate the embryos to another couple. Because they couldn’t agree between themselves, the court ordered the embryos be donated to another couple.

The Arizona Supreme Court ruling specifically pointed out that the new legislation was not retroactive and therefore did not apply to the Terrell v. Torres case. But this case raises several points—including the fact all three courts suggested that a clear written document (the clinic medical consent form both signed) should be honored, but more importantly, that the parties, their attorneys, and a bunch of judges in three different courts all had different interpretations of what the forms directed.

This case alone should make it crystal clear that medical consent forms are not enough: Parties looking for more certainty that their directive will be followed should absolutely enter into a more formal contractual arrangement in which, with legal counsel involved, everything is much more clearly spelled out than a typical clinic medical consent form.

Embryo Custody Disputes Increasingly Common

These are only a couple of high-profile examples of the conflicts that can arise with unused embryos, but, increasingly, disputes like these are winding up in court. The New York Times article cites family lawyer Monica Mazzei, who represents wealthy Silicon Valley clients: “It’s so common that now it’s a routine question that I have to ask: Is there any genetic material that we need to talk about?”

Of course, when undertaking the miraculous journey to become a parent via assisted reproduction, or to preserve one’s ability to have a future family together, no one wants to think that the worst may happen. But facing the unknowable now, and planning for all contingencies, is so much easier and less traumatic than being faced with such highly emotional questions in the midst of a painful separation or divorce. Talk about it; make those tough decisions now, in the best of times. Then, in consultation with your attorney, document your mutual understanding in a legal contract—and carry on with your plans.

For information about the legal issues surrounding unused embryos or embryo disposition agreements, contact our team of fertility law experts at IFLG.

 

 

Richard Vaughn
rich@iflg.net

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
PEIYA WANG(王培娅)
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 moved to the United States in 2012 to attend Northeastern 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, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. 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.

Katie Deaquino
KATIE DEAQUINO
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Luis Sosa
LUIS SOSA
Paralegal

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 which he received in 2013, 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. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Alexander Espinoza
ALEXANDER ESPINOZA
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Toni Hughes
TONI BOONE
Paralegal

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
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 DEVEREAUX
Paralegal

Kim has over 30 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 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
RICHARD B. VAUGHN
Founder

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 TAMAYO
Paralegal

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 CHIEN
Paralegal

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
MOLLY O'BRIEN
Partner

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.

Phoebe Sadler
PHOEBE S. SADLER
Associate

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan
RUBINA ASLANYAN
Paralegal

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Cara Stecker
CARA STECKER
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble
STEPHANIE KIMBLE
Paralegal

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
TRISH PITTMAN
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Elsa Jimenez
ELSA JIMENEZ
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.