Your Embryos and the Rights That Apply To Them

Victoria Ferrara


"Nick Loeb has filed a lawsuit to stop his former fiancee, Sofia Vergara, from destroying two female embryos created through in vitro fertilization six months before the couple split. The embryos, using Loeb's sperm and Vergara's eggs, were created in 2013. The on-and-off pair broke up for good in 2014." MSN Entertainment

Is this what you want? Your precious embryos to be the fodder of sensationalized legal proceedings? Or any legal proceedings at all for that matter? I doubt it.

Through the use of in vitro fertilization (IVF), millions of couples have been able to become pregnant, have several children, and are now done building their family. Now these same couples find themselves with remaining frozen embryos in storage. In many cases, when couples and families stay together, these embryos remain in storage for years. The couple may also donate the embryos to an embryo bank, which can help another couple or individual dealing with infertility. "Embryo donation and adoption is a new way to adopt, a new adoption choice! Rather than adopting a child who has already emerged from her mother's womb, embryo adoption allows the adopting family to begin the adoption journey nine months earlier with pregnancy and childbirth." Embryo Adoption and Awareness Center.

But what happens when the couple breaks up and they do not have the same intentions or desires for the remaining embryos? Note the Vergara �?? Loeb case introduced above.  Embryos are fast becoming the subjects of property and custody disputes in divorce cases.

The first American decision to consider the status of frozen embryos was Davis v. Davis, 842 S.W.2d 588 (Tenn.), on reh'g in part, 1992 WL 341632 (Tenn. 1992), cert. denied sub nom. Stowe v. Davis, 507 U.S. 911 (1993). The parties in Davis participated in a frozen embryo program, and were divorced while unimplanted frozen embryos remained. There was no written contract between the parties and the clinic that froze the embryos. The wife wished to donate the remaining embryos to a childless couple. The husband, who did not desire to have another child, wished to have the remaining embryos destroyed. The trial court held that frozen embryos are essentially children, and awarded them to the wife for implantation. The Tennessee Supreme Court held that frozen embryos are neither property nor children, as those terms are traditionally used in divorce cases, but rather a unique type of entity with aspects of both categories: We conclude that preembryos are not, strictly speaking, either "persons" or "property," but occupy an interim category that entitles them to special respect because of their potential for human life. It follows that any interest that Mary Sue Davis and Junior Davis have in the preembryos in this case is not a true property interest. However, they do have an interest in the nature of ownership, to the extent that they have decision-making authority concerning disposition of the preembryos, within the scope of policy set by law. Divorce Source

What is the answer? People creating embryos should also create embryo disposition agreements in order to hopefully ward off stressful, public court proceedings regarding their private and personal affairs, especially regarding a subject so sensitive. Whether such contracts are enforceable or not is an issue but nevertheless not having any agreement creates a vacuum from which serious disputes may arise. At least an embryo disposition agreement is evidence of the parties' intentions, and it demonstrates that each party is relying on the intentions, premises, and statements in the agreement.

The Informed Consent documents at a medical clinic are helpful and necessary but the parties creating the embryos should take a step further and document through a signed agreement what their intentions and plans are for the embryos upon death, separation, or divorce. These are methods by which parties can achieve resolution during difficult times.

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