July 25, 1978 marks a big moment in medical history. The first test-tube baby was born that day. In the nearly 40 years since then, reproductive technology has advanced on many fronts. What has failed to keep pace, as many legal scholars in Texas and elsewhere observe, is the law concerning this area. Of particular sensitivity is the question of frozen embryos.
Should they be treated as an asset, subject to property division that might be managed under a prenuptial agreement, or should they be handled in some other way? Should the embryos be thought of as children? If you don’t think this presents a dilemma, consider that Texas law states that marital agreements can’t be used to establish child custody terms.
The gap between where the law is and where in vitro fertilization techniques are us so wide that it’s been left to the courts to narrow the rift. Now there is another case on the horizon that experts say could cause a ripple in the water related to men’s rights — the dispute between actress Sofia Vergara and former fiancé, Nick Loeb.
Together, they created four in vitro embryos and had them frozen. Two attempts at implantation into surrogate mothers failed. The couple has since split, but they continue to fight over what could happen to the other two embryos.
She says she wants the embryos kept frozen. He says he feels an obligation to be sure the “two lives” he helped create aren’t destroyed or frozen “until the end of time.”
A contract making clear the embryos can’t be brought to term without the consent of both Vergara and Loeb is in place, but it apparently doesn’t have a provision covering this disagreement over the disposition of the embryos. A trial in Los Angeles in January will determine if the contract is valid.
Regardless of the outcome of this case, there’s no way to be sure how it might affect similar disputes in other states. There could be an influence, but every state’s laws are different. As a result, dealing with such delicate questions really needs to be approached with the benefit of skilled legal counsel.
Source: New York Post, “The Sofia Vergara embryo trial could change men’s rights forever,” Julia March, Sept. 16, 2016