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Frozen Embryo Agreements and Divorce

Modern Family actress Sofia Vergara and her ex Nick Loeb, creator of Onion Crunch, have been in the news lately not concerning acting or crunchy condiments but rather in vitro fertilization. In short, when the two were engaged, they created frozen embryos in their plans to have children. See Danielle and Andy Mayoras, Sophia Vergara Lawsuit Teaches Lesson for Couples Seeking IVF, Forbes, April 21, 2015, available at http://www.forbes.com/sites/trialandheirs/2015/04/21/sofia-vergara-lawsuit-teaches-lesson-for-couples-seeking-ivf/. Though the couple signed an agreement stating that unless both parties agree, the embryos cannot be used or destroyed and must remain frozen, Loeb has asked the courts to issue an order forbidding destruction of the frozen embryos and argued that the agreement they signed was not valid. Id.

            In Texas, the First Court of Appeals handled a similar dispute. In Roman v. Roman, 193 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2006, pet. denied), a couple attempted IVF after entering into an “embryo agreement,” which stated clearly that in the event of the couple’s divorce, the embryos will be discarded. The couple divorced, the ex-wife wanted to keep trying to have a baby, and the trial court awarded her the frozen embryos in their final decree of divorce.

            On appeal, the Court of Appeals analyzed the embryo agreement like a contract and noted that couples “strike the deal they choose to strike and, thus, voluntarily bind themselves in the manner they choose.” In so writing, the court determined the frozen embryos were no different from other items of property the couple may own and eschewed from using the “best interest” standard, which is applied to children in a custody case. The parties were therefore free to make whatever agreement they wanted concerning their property—including frozen embryos—and would be held to that agreement. Or, in more poetic terms, be careful what you wish for. You just might get it.

            The Roman case is only one of a handful across the country and abroad concerning the fate of frozen embryos after a couple splits up. The interesting case of Nahmani v. Nahmani comes out of Israel—the country with the highest rate of IVF cycles per person per year—and considers the parties rights to be a parent or not to be a parent. See C.E. Breen-Portnoy, Frozen Embryos Disposition in Cases of Separation and Divorce: How Nahmani v. Nahmani and Davis v. Davis Form the Foundation of a Workable Expansion of Current International Family Planning, 28 Md. J. Int’l L. 275 (2013), available at http://digitalcommons.law.umaryland.edu/mjil/vol28/iss1/14. Briefly, after failed IVF attempts and a divorce, the ex-wife wanted to try to use the frozen embryos again but the ex-husband did not. After a prolonged legal battle and trips to the Supreme Court, the Israeli Supreme Court held that “an individual’s interest in refusing parenthood could not be of primary concern because the absence of parenthood lacks inherent value.” Id. The ex-wife’s “right to realize parenthood took precedence,” and the court granted the frozen embryos to the ex-wife. Id. Notably, there was no prior agreement between the Nahmanis as to what would happen to the unused embryos in the event of their divorce, but the court did note that, by donating his sperm and allowing his wife to proceed with the painful procedure of egg retrieval, the ex-husband did consent to parenthood. See Nahmani v. Nahmani, Supreme Court sitting as the Court of Civil Appeals, Sept. 12, 1996.

            If there’s a lesson in all of this, it’s not only to stress the need for an embryo agreement—the lack of which led to the legal struggles in Nahmani—but also to understand the significance of such agreements. Loeb and the wife in Roman both sought to avoid the terms of their prior agreements, perhaps thinking that having a baby meant the couple would be together at least for the next nine months. Though it may be unromantic, these cases show it’s important to consider what will happen to the unused embryos in the event of a divorce or separation, if the fate of the embryos is important to you.

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