With life being on hold due to Covid for many couples, an increase in egg freezing is placing a light on who gets the embryo should a couple divorce.
Once upon a time, divorce was about who gained possession of the dog, the car, and bitterly, the children. However, in 2021, divorce has become about the custody of the children yet to be. This is especially salient, as the pandemic has inspired more couples to free their eggs. As TIME noted, “Shady Grove Fertility, which runs 36 clinics across the Eastern seaboard, had seen a 50% increase in women freezing their eggs since 2019. Doctors at NYU Langone saw a 41% year-over-year increase in women fertilizing their eggs. And Seattle Reproductive Medicine had conducted 289 egg-freezing cycles in 2020, compared with 242 in 2019, a nearly 20% jump.”
In typical fashion, this odd new tableau came to term in an American courtroom, with the most famous case featuring a television actor (from Modern Family, no less), as a Los Angeles judge ruled on the custody of frozen embryos the couple created during their relationship.
Sofia Vergara and Nick Loeb decided to freeze some of Vergara’s fertilised eggs in November 2013, but the pair split a year later.
Vergara alleged that her partner signed a contract allowing the eggs to be destroyed in the event of a break-up. However, Loeb disagreed, saying that destroying the embryos would be contrary to his pro-life values. He also said that he was pressured into signing the contract because Vergara was emotionally and physically abusive towards him.
Loeb even took the sensational step of penning an op-ed for The New York Times, stating that “our frozen embryos have a right to live”.
In the end, the judge ruled against him.
The New York Times summarised the central points of the argument, asking, “what should happen to any remaining embryos if one partner dies or becomes mentally incapacitated? Who would decide whether the remaining embryos should be donated or destroyed? Who would determine the disposition of remaining embryos in the case of divorce or separation?”
It’s a fair question, but the movement is certainly not new, as the above has been puzzling minds for years. It all started in 2014 when Ruby Torres was diagnosed with cancer. Worried about her fertility, she decided to use her eggs (and a donor’s sperm) to create embryos she could freeze and use later.
Her donor was John Terrell, her boyfriend at the time. Part of the requisite paperwork was an “Embryo Cryopreservation & Embryo Disposition”. This agreement specified that the embryos would be the joint property of the couple, so they would both need to consent to any future use.
Four days later (after marrying), the couple went through IVF and created seven embryos that were frozen. Soon thereafter, Terrell filed for divorce. Torres wanted the embryos because she couldn’t have biological children otherwise (which was the initial point). Terrell said that he opposed having children with Torres, and wanted to have the embryos donated to another couple.
Per Forbes, “The court noted that although the agreement concerned ‘sensitive subject matter,’ it was still governed by ‘ordinary interpretive principles’ that would apply to any other contract. Accordingly, the agreement controlled because the parties could not agree on what would happen to the embryos.”
What should happen to any remaining embryos if one partner dies or becomes mentally incapacitated? Who would decide whether the remaining embryos should be donated or destroyed? Who would determine the disposition of remaining embryos in the case of divorce or separation?
As a result of the case, Arizona enacted a new law directing judges to grant viable embryos to the “spouse” who will allow them to be born, regardless of any contract providing otherwise. It also sets out what will happen if both spouses want to allow the embryos to develop. Bitterly, this law was not retroactively applied to this case.
Speaking to Forbes, Law Professor Sonia Suter noted that “that while courts tend to rule in favour of the party choosing not to procreate, the Arizona statute defied this trend by privileging the right to procreate. In the Torres case, however, neither party opposed using the embryos to create a child; they simply disagreed as to who could use the embryos for pregnancy – Torres or a couple seeking embryo donations. As a result, the Arizona Supreme Court focused entirely on the contract, not the nature of the procreative interests of the parties.”
Locally, the Western Australia Family Court looked at this issue in the case of G and G FCWA 80. In this case, six frozen embryos were stored during the course of the relationship. When it ended, the man pursued custody of the embryos, explaining that he wanted to pass them on to an infertile couple. However, the contract signed at the beginning of the process stated that the embryos would be destroyed if the relationship broke down. As a result, the court ruled at the moment of original consent, discarding them in accordance with the terms of this agreement.
Here and abroad, it seems that we’re still dealing with the matter on a case-to-case basis. Richard Vaughn, a partner at the International Fertility Law Group in Los Angeles, spoke to The New York Times, explaining that while there was an increase in clients asking about the ownership of frozen embryos, he was no closer to giving them a satisfactory answer.
As he put it, “We’ve got this issue of lots and lots of frozen material out there…people have to figure what to do with them.”