This week, 42-year-old actress and star of the hit TV sitcom "Modern Family," Sofia Vergara spoke out for the first time after her former fiancé, Nick Loeb, said he should be allowed to use her frozen embryos to have children, even without her consent. According to CNN, Their relationship ended over a year ago, but Loeb has gone public in his law suit over the embryos. Loeb is suing for custody of the embryos, writing in a New York Times op-ed, “in my view, keeping them frozen forever is tantamount to killing them.” Loeb also admits the couple signed a consent form before getting started with IVF, stating nothing could be done with the embryos unless they both agreed. However, the form did not specify what would happen if the two were to separate, a separate consent required by California law.
Dahl vs. Angle
For Gevurtz Menashe, after arguing the Dahl vs. Angle case in 2008, both at the trial and appellate level(s), this story has been an interesting one to follow. This case still remains the only frozen embryos case to appear before the Oregon Court of Appeals—and as far as we know—the only one litigated in Oregon. However, cases similar to these are certain to follow. With more same sex couples marrying and wishing to rear children, the declining male fertility rate, and the increasing number of women waiting longer to have children, the population of those who are likely to seek fertility assistance is growing. The law has been slow to adapt to these rapid social changes—and the advancements in medical technology.
Gevurtz Menashe is a family and estate planning law firm based in Portland, Oregon and Vancouver, Washington. For more information, call us at 503-227-1515 or request a consultation online.
Embryo Law – Is an Embryo a Living Creature?
With over 600,000 frozen embryos in the country (according to the U.S. Dept. of Health and Human Services), it’s inevitable these IVF issues will continue to grow as a common dispute among couples, in every state. Although this specific case is receiving national attention due to the celebrity involved, it still raises several fundamental legal questions exploring areas such as “when does life begin?” and “what is conception?”—and further, in the eyes of the court, “is an embryo considered a living creature or is it property?”
For what it is worth, I predict that Mr. Loeb has virtually no chance of persuading the court to allow him to bring to life the frozen embryos carrying Ms. Vergara’s genetic material. The cases from the U.S. and around the world are unanimous in ruling, under the circumstances of this case, that a child will not be brought into this world without both parent’s consent.
For Oregon couples considering any in vitro fertilization procedure, we recommend you seek legal advice from a lawyer experienced in this area. The lawyer will generally advise each party to sign a strong and clear contract provision, or premarital agreement indicating what should happen to any genetic materials should the couple’s relationship end.
About Bill Howe
Bill Howe is our leading authority of relationship agreements and has worked with several cases involving the agreements and litigation of genetic material, including the Dahl vs. Angle case in 2008, on frozen embryos. Bill’s family law practice includes a special emphasis on relationship agreements, premarital agreements, complex property and children’s issues and appeals—and for decades—he has been a leader in crafting the very legislation and procedures that govern family law in Oregon.
If you would like to learn more about the legal impact of in vitro fertilization, or how you and your partner can better plan for the future, we would be happy to assist you.