Couples who create IVF embryos together should consider hiring lawyers before beginning the fertility treatment process, according to reproductive law experts. While unpleasant, much like a prenup, the process can help avoid a messy, complicated legal battle like the “custody” lawsuit against actress Sofia Vergara by her ex-fiancé, Nick Loeb.
Few couples take this extra step before attempting IVF. But Vergara and Loeb’s case underscores the need for conscientious couples to prepare for every potential future scenario, no matter how unlikely, said San Diego-based surrogacy lawyer Stephanie Caballero.
Couples already sign consent forms that detail how an IVF lab should distribute embryos in cases of death, divorce and other scenarios, but those forms are an agreement between two parties: the couple and the IVF clinic, not between the partners themselves, explained Caballero, an executive board member of the American Society for Reproductive Medicine’s legal professional group.
Couples who want to guard against any future ambiguity should also hire individual lawyers to hammer out an agreement between themselves, she says. Caballero estimates that hiring lawyers for each partner would add $1,300 to $1,500 to the total cost of IVF, which averages $12,400.
“Would it cost you an extra $1,000 to hire a separate attorney? Yes. One would draft, and the other would review it with [you],” said Caballero, who is not involved in Vergara’s case. “But at the end of the day, could it help prevent something like this? It may.”
Hiring separate lawyers for each partner may have another added benefit, said Jan Costello, a professor of child and family law at Loyola Law School in Los Angeles. As it stands, said Costello, people who are attempting IVF can be fixated on the end result ― a potential baby ― without giving much serious thought to the fate of leftover embryos.
“The good part about doing it with your separate lawyer and spending a lot of time working out the agreement is that it probably encourages both parties to think much more in detail about what they want to do,” said Costello. “You may not think about it as clearly or in as much detail than if you had your own attorney and really have to hash out an agreement between the two of you.”
When they were a couple, Loeb and Vergara attempted IVF twice and signed forms that said both partners need to give consent before the embryos are used in a pregnancy. The pair broke up in 2014, and Loeb sued Vergara later that year on the grounds that their consent form should be voided because it didn’t specify what happens to the embryos in the event of a separation.
The case appeared to be winding down, according to the New York Post. Then last Wednesday, a man with no apparent ties to Loeb or Vergara filed a right-to-life lawsuit in Louisiana, suing Vergara on behalf of the embryos. The Daily Beast reports plaintiff James Charbonnet is the trustee of a fund that has been established for the embryos’ maintenance and future. In a legal twist made possible by Louisiana’s laws on the rights of embryos, Loeb and Vergara’s embryos are also listed as plaintiffs, referred to as “Emma” and “Isabella.” Charbonnet is arguing the embryos should be transferred to a uterus to be born and potentially collect inheritance.
States matter when it comes to the legal status of embryos
In California, where Loeb and Vergara created the embryos, current law states that fertility clinics must provide their patients with information to make an informed choice about what to do with any remaining embryos after treatment in case of death, separation, divorce or failure to pay embryo storage fees. Options include perpetual storage, donation to other people, donation to research or destruction.
Lori Myers, a reproductive lawyer based in Los Angeles, says the forms Loeb and Vergara signed ― the ones requiring the consent of both partners before attempting a pregnancy ― should take precedence over all other potential scenarios, like separation or death of a partner.
“The fact that they’re her genetics, and she signed the forms as an individual participating in the IVF process, should be controlling in the management of those embryos and her genetic material,” said Myers, who is not involved in the case. “It shouldn’t be that there’s some way to go around that to utilize her material without her consent.”
Myers was less enthusiastic about the concept of a separate contract, explaining that consent forms signed at a clinic should be powerful enough to determine the fate of created embryos before they’re even made. But for Vergara and Loeb, who were not married when they attempted IVF and thus could not treat created embryos as community property, a separate contract may have clarified things even further ― and made it harder for Loeb to claim that he signed the consent forms under duress, as he did in his own lawsuit against Vergara.
“Because they weren’t married, it might have made good sense to sign something privately,” said Myers. “[But] what they sign at the clinic memorialized their intent and should be controlling, certainly in the absence of a contract like that.”
Loeb isn’t a named party in the Louisiana lawsuit filed against Vergara, but if he is ultimately behind the new legal effort, he doesn’t appear to have much legal ground to stand on, said Costello. Embryos are legally regarded as property throughout the United States, and the lawsuit’s rhetorical flourishes ― naming the embryos Isabella and Emma ― do nothing to enhance their legal status.
The attempt to file a lawsuit against Vergara in Louisiana, a state that gives embryos more legal rights than other states, is probably also futile because Loeb and Vergara’s embryos are stored in California, Myers adds.
A legal precedent for suing for embryos
While Vergara and Loeb’s legal battle is highly unusual, other people who have created embryos together have gone on to sue each other for the right to use them.
When similar suits are brought to court, judges tend to favor a person’s right to not be a parent over a person’s right to attempt pregnancy with leftover embryos. The only cases that have been decided in favor of people in Loeb’s position involved a partner who had suffered a medical circumstance rendering them unable to conceive any of their own children, Costello explained.
One 2012 judgment in Pennsylvania found that a woman had the right to all the embryos she had frozen with her ex-husband because she had subsequently been treated for breast cancer. Those embryos, the court ruled, were the woman’s only shot at genetic parenthood, while her former husband had gone on to successfully conceive with another woman after their divorce.
Similarly, a 2014 case in Illinois awarded frozen embryos to a woman who had created them with her ex-boyfriend before she was to undergo chemotherapy for lymphoma. The pair never signed consent forms about what should be done with the embryos in the event of a separation, but a judge held the ex-boyfriend to his oral agreement to create embryos before the woman began her cancer treatment.
In both of the cases, the couples underwent IVF treatments specifically to protect their future fertility in advance of the women’s impending cancer treatments.
Considering IVF? Here’s what you should do to protect your legal rights
If you’re thinking of attempting IVF with your partner, seriously consider hiring lawyers to craft a contract that specifies what to do with any created embryos in the event of a divorce, death or medical circumstance that renders a person infertile or sterile, the experts concluded. But if you do go this route, said Myers, you also have to note that this contract takes precedence over any differences with the consent forms signed with an IVF clinic.
Ultimately, Costello added, while separate contracts created by different lawyers may force couples to be more conscientious about this decision, and give them less leeway in terms of claiming “duress” or that they didn’t understand the consent forms they were signing, contracts won’t do much to prevent someone from changing their mind after embryos are created.
“There’s no way to prevent someone from changing their mind and having a conflict about it,” Costello concluded. “You can create a stronger agreement that will make it less likely, but you can’t prevent your ex from going to court and trying to challenge it.”