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Sofia Vergara’s Embryo Battle with Her Ex Fiancé Raise Important Family Law Questions

Many media sources tout that nearly 50 percent or more of U.S. marriages end in divorce today, and that rate triples for couples who struggle with failed infertility treatments. So it’s not really surprising that Sofia Vergara and her ex-fiancé, Nick Loeb, are in a legal battle to bring to term two frozen embryos they created together. This highly publicized debate does provide a long overdue focus on where law is still catching up with science.

The Vergara-Loeb embryo battle shows that Assisted Reproductive Technologies (ART) have ushered in an era of confusion and debate about what to do when fertility treatments don’t go as planned.

Loeb and Vergara created two embryos and signed a contract that the embryos could only be used by mutual consent. It is reported that he then pressed for implantation and when Vergara refused, they split up. (She has since become rapidly engaged to the film star Joe Manganiello). The dispute is more than domestic, it raises ethical dilemmas. This kind of case can raise the question of whether or not one member of a couple should be forced to become a genetic parent against their will, even though there are already examples of this in society today (i.e. rape victims who elect to keep the baby). Also, the children, once born, would presumably have strained relationships or no contact with Vergara, which would be difficult for them and possibly a continual media strain on Vergara.

But Loeb isn’t a completely heartless. His complaint seeks to obtain the embryos in order to implant them into the womb of a surrogate he would hire. He would then raise the children on his own. It also raises ethical questions on his side of the issue as well. For example, what about instances where someone has undergone subsequent treatment for cancer and is thus left incapable of producing gametes that would make it possible to be a genetic parent in the future? What if these embryos are Loeb’s only or last chance to be a father?

Many are of the persuasion that because the embryo would still have to be implanted to be viable, that the woman should own the embryo. However, when fertilization occurs outside a woman’s body, it makes ethical and legal sense that each contributor to the embryo would have an equal say in what would be done with them. Many couples who are using ART or other fertility techniques have contacted a family law attorney to draft an agreement about who owns any embryos or other such possible property and what the agreement between the parties is if the couple splits up. Without a written agreement though, couples in this precarious situation could be at the mercy of the courts, which have not reached a majority opinion on the issue.