What about the Embryos?

By Jennifer J Hostetter

If you’ve watched or read the news lately, you have likely heard about Nick Loeb suit against Sofia Vergara over the use of their two frozen embryos. While the couple was engaged, they had two frozen embryos stored at the Art Reproductive Center in Beverly Hills, California. This case has raised lots of issues such as who has the right, if any, to use these embryos and if no one can use them, then what happens to the embryos.

Imagine the joy in finally being able to have a baby through assisted reproductive technology. There is so much excitement that the last thing you are probably thinking about is divorce or death. But these two topics are very important to consider before signing any consent forms with your clinic. Typically before the storage process begins, the clinic will ask you to sign consent forms. These forms can allow you to determine how long the embryos should be stored, whether you want to donate the embryos, or if they can only be used for your benefit. Often times, these forms include boilerplate provisions and may not reflect the true interests of the parties at the time or upon a separation or dissolution of the marriage.

In a divorce, the frozen embryos are usually considered property subject to division. However, depending on what you and your partner signed at the clinic, the partner receiving the embryos through the divorce, may be extremely limited in what he or she can do with them because the consent forms at the clinic likely still recognizes both parties as the owners of the embryos. Whether or not the clinic will recognize the decree giving you full ownership of the embryos is also a gray area of the law. However, imagine the opposite where Wife receives the embryos pursuant to a divorce decree, and then wishes to implant those embryos and becomes pregnant. Then the question becomes whether or not Husband has to pay child support for that child and if he has any parenting time rights with that child. Unfortunately in Indiana, there are no clear cut answers to some of these questions. 

It is extremely important to meet with an attorney to discuss these consent forms and all of your options or interests prior to signing the forms. Further, in situations where the couple isn’t married yet, it would be wise to speak with an attorney and include information in a prenuptial agreement regarding the embryos in the event of divorce. 

Information provided by the law firm of Kirtley, Taylor, Sims, Chadd & Minnette, PC. For more information contact them at 317-550-4333 or visit them online at www.KirtleyTaylorLaw.com.