Frozen embryo concept and genetic and legal questions as a social issue or medical health care idea with a fertilized human egg embryo and dividing cells in the shape of a question mark as a symbol for fertility DNA and gene related issues.

I hereby bequeath my created embryos to…

I was sitting in the waiting room filling out paperwork for my upcoming IVF procedure, when they asked me to make an instant decision that could affect the futures of my hypothetical children. I was on medications that altered my emotional stability, very nervous about my upcoming egg retrieval, and was in no state of mind to consider the possibility of my death or a divorce. I decided to just check a box on the form and think about it later.

Legal Battle After Death

For a couple who created embryos in China, delaying the decision until “later” meant a lengthy and expensive legal battle for their embryos after their deaths.

Four years after a Chinese couple died in a car crash, their baby was born to a surrogate, BBC reports. Tiantian was born in China in December to a Laotian surrogate. Although he has no parents, his four grandparents have reportedly proven relations through DNA. The four new grandparents said they were thrilled that they are able to continue the families’ bloodline.

According to Time Magazine Online, “Tiantian’s parents had intended on having a baby through in-vitro fertilization (IVF) and froze several embryos. After their untimely death, the grandparents-in-waiting fought a protracted legal battle to inherit the fertilized eggs that were frozen in a Nanjing hospital’s liquid nitrogen tank. Chinese media noted that there was no precedent for the legal battle. But eventually, the grandparents won custody of the embryos.”

If you have created embryos, you should speak to your lawyer to make sure provisions in your will or trust address their future. Molly O’Brien, from Whittier Law School, encourages legal professionals to lead the conversation, “If you have a client who has undergone IVF there is a strong likelihood that they will have frozen embryos remaining. During your client intake you should inquire if they have undergone any procedure, if they have any embryos in storage or gametes in storage. If your client has any of these, then it is important to account for those embryos in the will or trust. The cost of storage of the embryos may be a debt that needs to be anticipated or the disposition of the embryos after the death of one or both of the progenitors will need to be arranged.”

Click here for more information about will and trusts dealing with created embryos.

Divorce or Break Up

While it seems statistically unlikely that both IVF participants would die at the same time, the odds of  relationship dissolving are much higher. In the event of divorce or break-up, the same issues can arise. Sofia Vergara, Modern Family actress, engaged in a lengthy legal battle against ex Nick Loeb over their frozen embryos. Vergara and Loeb were involved in an on-again, off-again romantic relationship from 2010 until May 2014. The actress is now married to True Blood star Joe Manganiello.

According to E ONLINE, Loeb, 42, filed a custody lawsuit against Vergara, 45, in California, one year after they broke up, claiming that she had undergone IVF in 2013 and had embryos created from his sperm and her eggs. Two were frozen for a possible future pregnancy. Loeb claimed Vergara now wants them destroyed. She has denied this, saying the two had signed an agreement under which no unilateral action for the embryos can be taken.

The actress has stated through her lawyer she does not want the embryos used or destroyed — simply held in the same cryo-preserved state they’ve been in since late 2013. In February 2018, Vergara filed papers in California asking for declaratory relief and a permanent injunction that would officially block Loeb from being able to use the embryos without her written consent.

Loeb argues that Vergara has “effectively abandoned and chronically neglected” the embryos by “refusing to consent to their development or care” and has requested that Loeb receive custody of the embryos in order for them to live and ultimately inherit a trust fund that was created in their names.

Legal Protection

According to the Huffington Post, “little protection presently exists for those seeking a remedy for disposition of their preserved embryos nor is much case law available to offer them guidance when a legal inquiry ensues, leaving adjudicating couples in uncharted waters with multiple issues to resolve. There is likewise controversy regarding whether agreements from IVF facilities are legally enforceable in the first place. Regardless of how airtight those documents appear, until implantation of frozen embryos in the mother’s uterus, a couple can change their minds.

Unlike other forms of personal property, ownership of cryogenically stored embryos can affect one spouse to the potential detriment of the other if the couple’s parenting goals are suddenly no longer aligned. Courts generally take the position that one spouse cannot compel the other spouse to become a parent against his or her will. With lifelong financial and emotional issues at stake, courts remain reluctant to impose parenthood if both potential parents refuse to consent. However, courts are increasingly examining extenuating circumstances where the destruction of frozen embryos would prevent an individual from ever parenting a child biologically.”

Before undergoing IVF, it is critical couples discuss with one another in detail what can potentially become of their frozen embryos in the event of a death or divorce. Though it is unpleasant to imagine the possibility of a death or breakup when planning a family and life together, having a discussion beforehand and then memorializing it in a legal document can save time and money and guard against more heartache down the road.