Remaining embryos and decisions related to remaining embryos (those that were created during an IVF but not needed for continued family building) is a fascinating concept for many. Can you imagine, after years of struggling to build a family then later needing to contend with embryos you no longer need? This is a reality of every fertility patient anticipating an In-Vitro Fertilization (IVF) procedure. And so, we, at Gifted Journeys, talk to our clients about embryos, particularly our egg donation clients but even for our surrogacy clients, the issue of remaining embryo disposition is one they each will eventually address.
So, what is all this about Sophia Vergara and Nick Loeb, fighting over what to do with the embryos that remain from previous efforts to, together, build a family? The media is reporting that the then couple made two attempts to achieve a viable pregnancy with the assistance of a gestational carrier. As reported, neither of the two transfers resulted in the surrogate becoming pregnant. The couple has since split and are battling over what to do with those embryos that remain.
At the time of the IVF, Ms. Vergara and Mr. Loeb signed a patient consent form at the fertility center with which they intended to cycle. The consent addressed remaining embryos by providing for disposition options in the event of either or both Vergara and/or Loeb’s death but was silent to the dissolution of their relationship. It is being reported that Ms. Vergara would like the embryos destroyed while, apparently, Mr. Loeb is objecting to destruction based on moral and religious grounds.
Clearly, we see that there is a problem with the particular consent form Ms. Vergara and Mr. Loeb signed. Clinic consent forms must address break-ups in the same manner they address death of a patient. The clinic in this matter was remiss in not requiring that their patients contemplate a break-up relative to the embryos and indicate, on the consent, what they intend to do should their relationship not continue.
But, what if the clinic consent form you signed is comprehensive? What if you and your spouse or partner do elect, on that consent, to a specific disposition option (patients at fertility clinics have several options with respect to cryo-preserved or frozen embryos they have stored at their clinic: they can order that embryos remain cryopreserved indefinitely, they can order that the embryos they no longer need or intend to use be destroyed, they can donate the embryos to research or they can donate the embryos to someone else for that person’s own family building) but then, at the time of a break-up, you no longer agree. Can you challenge the consent form? Can you ask a judge to determine if that consent is valid and enforceable?
We have seen several cases over the last many years where one spouse or partner wants to use the embryos for continued family building and the other, after a break-up, objects to having parental obligations imposed upon him. Typically, the courts have ruled that the party who does not wish to parent has priority over the party hoping to use the embryos. Because parental rights cannot be waived, regardless of the other party’s willingness to relieve the ex of child support and other obligations, the law does not allow for that and so, the party wishing to avoid becoming a parent against his or her will typically prevails in these cases.
Gifted Journeys’ urges each of its clients to always, always seek the advice of an attorney, ask that the attorney review the clinic consent forms to be sure they are comprehensive and do inquire about whether or not an agreement between the two who are creating the embryo, an Embryo Creation and Disposition Agreement is appropriate.