Sofia Vergara and the Fate of an Embryo

Actress Sofia Vergara recently had a public dispute with her ex-fiance Nick Loeb over their frozen embryos. It has been reported that Vergara and Loeb created two embryos. An embryo is created in a lab by fertilizing a woman’s egg with a man’s sperm. When the couple parted ways, Loeb sued Vergara for control of the embryos. Loeb would like to use the two embryos to have children through the use of a surrogate, whereas Vergara wishes to keep the embryos frozen. Prior to creating the embryos, the couple had signed a contract that stated that both parties had to agree to bring the embryos to term. Should their contract govern the fate of the embryos?

As artificial reproductive technology like in-vitro fertilization (IVF) has become more prevalent, the issue of the fate of unused embryos has become more common. Courts have struggled with how to deal with stored genetic material in instances of death or a break-up. According to the American Bar Association, the Courts have consistently classified stored sperm as property, while stored embryos have not been uniformly classified as such. Are embryos property or are they something more?

In most disputes over stored genetic material, the Courts have turned to the written agreement entered between the parties before they stored the genetic materials to make a decision, if such an agreement was in place. The Courts have tended to favor the party who did not want to have children over the party who wished to have children.

But what if one of the individuals who contributed genetic material to create the embryo can no longer have children? Does that change the calculation? That is the situation Mimi Lee finds herself in an active California case. Lee reportedly created embryos with her husband after a cancer diagnosis. When the couple later divorced, Lee’s husband wanted the embryos destroyed. At 42 years of age, the embryos may be Lee’s only chance of having her own genetic children. Whose interest should take precedence?

Legislation has not kept up with technology when it comes to artificial reproductive technology. Until it does, courts will have to wrestle with the difficult issue of classifying the nature of embryos and their destiny when donors no longer agree on their use.

We’d love to hear your opinion on these issues. How should Ohio come down on these questions? Is an embryo property? Should an agreement between donors always control or are there exceptions to the rule?