On our blog, we have highlighted various examples of things that can go wrong for couples who do not take the proper steps to protect their legal rights when starting a family using assisted reproduction. This often occurs in the relatively straightforward act of creating and storing embryos for use in in vitro fertilization using the intended parents’ own genetics. Even the rich and famous are not immune to these problems as a recent case involving actress Sofia Vergara demonstrates.
The actress was engaged to Nick Loeb for a period of time. During their relationship, the couple created and stored two embryos using their genetics for the purposes of one day starting a family together. However, the couple called off their engagement, which resulted in significant dispute over custody and disposition of the embryos.
At the time the embryos were frozen, the couple signed an agreement at the fertility clinic that they could not be destroyed without the consent of both parties. Loeb had filed suit against Vergara in California as he believed that she wanted to take unilateral action to destroy the embryos without his permission, which the actress denied. He recently dropped this suit in California and moved his efforts to the courts in Louisiana, where there is a “personhood” statute that essentially gives embryos status as persons for legal purposes. This new case could have major implications for assisted reproduction law.
Suit is focused on “potential inheritance issues”
The new claim was filed in Louisiana on behalf of the embryos as persons. The embryos were given names in the pleadings, and the allegations state that Vergara is attempting to deny the potential inheritance of the “children” because she is keeping the embryos frozen and preventing them from ever inheriting her estate upon her death. The petition is asking the court to award full custody of the embryos to Loeb, upon which order he would presumably transfer the embryos for gestation and create live-born children (not embryos) who could then assert their inheritance rights against Vergara.
The key question that will need to be addressed in this case is whether the embryos will, indeed, be considered and treated as persons under Louisiana law. Since Louisiana has a very expansive definition of a person, the embryos could potentially have the right to sue. Experts are unsure what will happen in this case, but the impact could affect embryo disposition issues beyond just Louisiana. Couples using assisted reproduction need to consult an experienced attorney to ensure their specific wishes are being addressed before they create embryos, not afterwards only when an unexpected dispute arises. Once that occurs, it is often too late to protect each party’s rights.
What an attorney can do for you
Because these laws are constantly changing and differ substantially from state to state, you have to make sure that you are working with a law firm that understands the complex issues involved in these situations. An attorney will ensure that the agreement that is created protects your parental rights, both now and in the future.