If not for her success on the ABC series “Modern Family”, actress Sophia Vergara's court battle with former fiance Nick Loeb over the fate of their frozen embryos would probably be as unremarkable as any other custody motion brought before the California courts.  From a legal perspective, however, this case is about much more than an ugly dispute between a celebrity and her scorned lover.  The process of embryo transfer is becoming more commonplace, thanks to advances in reproductive technology, as well as an increase in the number of women who wish to put off parenthood for personal or professional reasons.  While assisted reproduction continues to be controversial, the act of fertilizing one's own eggs, or donated eggs, and freezing the resulting embryos is considered a legal process.

On the other hand, there are significant legal uncertainties over what to do with those embryos in the event of a divorce of breakup.  In the Loeb- Vergara case, which is still pending a trial date, Loeb has sued for custody of the embryos, arguing that each one is an “unborn child”, and that destroying them or keeping them frozen “is tantamount to killing them”.  Apparently, this argument is being taken seriously by the California courts, but the New Jersey courts are more likely to side with Vergara because of precedents that were established through cases like J.B. v. M.B. of 2001.  

The ruling in this case determined that the destruction of the embryos would not infringe upon the husband's right to procreate, since he was fertile and thus, able to have more children.  Allowing the embryos to be donated to another couple, however, would violate the wife's right to procreate or not procreate.  The ruling also addressed the verbal agreement between the couple, which was that the embryos would be donated to other infertile couples in the event of divorce.  The court determined “that a contract to procreate is contrary to New Jersey policy and is unenforceable”.  Since this is directly spelled out in the state laws, the court ultimately based their ruling on contractual grounds, although there are clearly compelling constitutional grounds.

The aforementioned ruling was issued by the trial court, but the New Jersey Supreme court upheld the ruling by relying more heavily on the wife's right to procreate.  They also cited the consent form for the IVF program, which stated that the program retains control over the embryos unless the couple had a written agreement, which J.B. and M.B. did not.  The consent form also stated that the program would follow any court-ordered directives in reference to the destruction of the embryos.  Since it was up to their discretion, the court ruled that the embryos must be destroyed in order to preserve the wife's reproductive rights.  As you can see, assisted reproduction is an intensely complex legal issue which requires careful thought and planning. For more information on your assisted reproductive rights, please speak with the attorneys of Villani & DeLuca, P.C.