What Happens to the Frozen Embryos in Divorce?Last year, a conflict between Sophia Vergara and Nick Leob dominated the headlines about what would become of their two cryogenically preserved embryos. The ethics surrounding assisted reproductive technology has been the topic of many conversations and debates ever since. At issue in this case is the fact that Leob and Vergara created two embryos which are being preserved at a fertility clinic in Beverly Hills. The two signed a contract agreeing that neither party could bring the embryos to term without the other’s consent. Custody battles over living children are already complicated enough but with assisted reproductive technologies such as in-vitro fertilization and the ability to preserve embryos cryogenically, disputes over frozen embryos have added a level of complexity to the debate.

In the case of Leob and Vergara, Leob wants to have the embryos transferred to a surrogate in an attempt to bring those children into the world. Vergara does not consent to this arrangement. She has said that she does not want to be forced to be a parent against her will. It is her desire that the embryos remain cryogenically preserved indefinitely.

Both agreed that the embryos would not be implanted without the other’s consent, but they did not stipulate what would happen in the event that they were unable to agree, which is exactly what is happening right now.

New legal and ethical dilemmas emerge along with assisted reproductive technologies

These amazing innovations in assisted reproduction that allow couples to bring forth children have been beneficial for couples who were not able to become pregnant in the usual way. However, the innovations in creating life (or potential life) outside of a woman’s body bring with them a whole new set of ethical and legal dilemmas that we as a society will have to address.

Frozen embryos are not living beings and they are not exactly property. Since Ms. Vergara and Mr. Loeb’s embryos are already fertilized, they are in a slightly different position than many other people. If they were not fertilized, they could be divided as marital property – even if it sounds a bit distasteful.

Here’s how a similar case went in Tennessee: back in 1989, a Maryville couple went through a divorce where the primary issue was how to dispose of frozen embryos that were created prior to the marital difficulties. Once the divorce was filed, the husband asserted that he did not want the frozen embryos (he had donated the sperm) to result in the birth of a child. The wife wanted them donated to a couple who wanted to become pregnant. In this case of first impression in Tenn., Davis v Davis, the appellate Courts ultimately ruled that the interests of ex-husband in not becoming a parent outweighed the interest of ex-wife who wanted to donate the frozen embryos. The Clinic was authorized to follow its normal procedure in dealing with the frozen embryos. Eventually, our State Legislature passed new laws in 2013 dealing with some of the issues of parentage and embryo donation.

There are many complicated legal principles involved in a dispute about the disposition of frozen embryos when a couple separates or divorces. I would advise any couple who is considering ART to work with an attorney who is familiar with assisted reproductive technology and can help the couple draw up an embryonic disposition agreement that will include what will happen with the embryos in the event of the couple’s separation or divorce.

I am an experienced family law attorney who will advocate your best interests without unnecessary conflict. You deserve a knowledgeable and compassionate family lawyer in Blount County who will be on your side during your complex divorce process. Please contact me, Kevin Shepherd, to learn more about your options.




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