The New York Times recently published an Op-Ed by “Modern Family” star Sofia Vergara’s ex-fiancé, Nick Loeb, regarding his California lawsuit seeking possession of two frozen embryos the couple created during their engagement. In the Op-Ed, Mr. Loeb explains that, when they created the frozen embryos, Ms. Vergara and he signed an agreement, stating that the embryos would only be implanted with the consent of both parties. However, the agreement was silent as to treatment of the embryos if the couple separated. Now that Mr. Loeb and Ms. Vergara are no longer together, Mr. Loeb is suing for custody of the embryos and the the right to have them implanted in a surrogate and brought to term without Ms. Vergara’s consent.
Mr. Loeb argues that his desire to become a parent outweighs Ms. Vergara’s wish that the frozen embryos not be used. Furthermore, he also claims that he and Ms. Vergara entered into an oral contract to implant embryos in a surrogate under all circumstances.
Though the case law on this issue is extremely limited, in a 2001 New Jersey Supreme Court case J.B. v. M.B., the husband made similar arguments regarding distribution of seven frozen pre-embryos incident to the parties’ divorce. The New Jersey Supreme Court decided that the alleged oral contract was unenforceable and the wife’s wish not to procreate outweighed the husband’s wish to procreate.
In a 2012 Pennsylvania case Reber v. Reiss a wife who sought to become a parent prevailed over her husband, who did not wish to procreate. In that case, the wife was infertile and had no means other than use of the frozen embryos to become a parent to a child genetically related to her. Based on that specific factual scenario, the Pennsylvania Superior Court held that the wife’s interest in biological procreation using the frozen embryos outweighed the husband’s interest against procreation.
As more families turn to assisted reproductive technologies, it is likely that more and more cases like the Loeb/Vergara matter will be adjudicated by the courts. Of course, it is yet to be seen how New Jersey courts will handle such cases, which often involve specific facts that may lead to different results. Stay tuned to this blog for updates on this and other exciting and interesting areas of family law.
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