Nassau County Family Law Blog

Tuesday, December 27, 2016

What Happens to Frozen Embryos After Divorce?

Who gets custody of frozen embryos after a divorce in New York?

Actress Sofia Vergara of “Modern Family” is battling with her ex Nick Loeb over the fate of their frozen embryos.  The important case may set legal precedent in a field marred with uncertainties.  Vergara and Loeb went through the process of in-vitro fertilization in 2013.  Multiple frozen embryos were created and two were implanted into a surrogate, but the procedures failed.  In 2014, the couple broke up—but their relationship did not end amicably.

 Loeb filed suit against Vergara, blocking her from destroying the embryos.  Vergara has countered that she does not want to destroy the embryos, but also does not want Loeb to bring them to term with a surrogate.  Further, Vergara’s legal team has stated that the agreement the couple signed at the fertility clinic should be the final word.  However, a Los Angeles County Court has set a trial on the matter in January.  The court will focus on whether the contract is valid.

Resolving Embryo Disputes

So-called “test-tube” babies were first created forty years ago, but most states today still do not have laws governing custody of frozen embryos.  Courts have treated disputes over embryos in varying ways, with many deferring to clinic contracts.  A recent Missouri court explicitly ruled that frozen embryos are property, not people and as such do not have the rights of children in the event of a divorce.  Other states have sidestepped the issue as to whether embryos are people or property. 

New York was one of the first states to issue a decision on the matter of frozen embryos and divorce.  The court held that the couple must abide by the agreement they both approved before divorce that stated both partners must consent before the embryos could be used.  In adopting this principle, the New York court affirmed that embryos should be dealt with as contractual matters and not treated as a special class of property or a person.  Nonetheless, this is an evolving area of the law and anyone needing assistance with a frozen embryo dispute should consult with a Nassau County divorce attorney as soon as possible.  

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