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How The Sofia Vergara Frozen Embryo Case Highlights Key Issues For Lawyers

A victory to Vergara over the control of frozen embryos provides an insight into right-to-live lawsuits, another fast-growing area of law that family lawyers everywhere need to be aware of

Actress Sofia Vergara has succeeded in her ongoing lawsuit with her former fiance Nick Loeb over their frozen embryos in a long legal battle that has illustrated the complexities involving ownership and control of frozen embryos.

The Court order means Loeb has been permanently blocked from using their frozen embryos without the actress’s consent, according to reports in a case that has been running for years and also demonstrates the ongoing …

How The Sofia Vergara Frozen Embryo Case Highlights Key Issues For Lawyers 7

Vergara and Loeb (pictured) dated from 2012 to 2014, created the embryos via IVF at the ART Reproductive Center in Beverly Hills in 2013 when they were trying to have a child via surrogate.

The original contract, as outlined in court documents, states that one party cannot use the “cryopreserved material’’ to create a child without the written consent of the other person. The contract signed by the couple at the fertility clinic in 2013 remains valid, the Court ruled.

Loeb had argued that keeping the embryo’s frozen was the equivalent of killing them, thus opening an array of legal arguments regarding right to live lawsuits and the like.

Long Running Dispute

The lawsuit against Vergara commenced in Louisiana as a right-to-live lawsuit with the embryo’s as plaintiffs (they were named ‘Emma’ and ‘Isabella’), with a ‘trustee’, who was a New Orleans resident with no relation to Vergara.

The intent of the suit was to give the embryos a chance to further develop using a surrogate carrier, hence to be born, and to also benefit from an inheritance trust that had been created for them and is administered by the trustee.

In August 2017, a Louisiana judge dismissed the case on the grounds that the court had no jurisdiction over the embryos, which were conceived in California.

What IS Embryo Freezing?

Embryo freezing (which is also known as embryo cryopreservation) is a procedure that allows the storage embryos for future use.

The reasons for cryopreserving embryos vary — it may be to store an embryo if they want to postpone pregnancy, to preserve their fertility (e.g. cancer patients), to donate to others (embryo donation), or to donate for medical research.

The process begins by using hormones and other medications to stimulate the maturation of multiple eggs (also known as ovarian stimulation). Once ready, the eggs are retrieved from the ovaries (egg retrieval procedure).

However there have been lawsuits and ethical issues over the question of control and ownership, as evidenced by the long-running Vergara case.

An analysis of cryopreserving cases undertaken by Science Direct showed as follows:

One-hundred and thirty-three cases were filed from January 2009 through June 2019 that credibly alleged the negligent destruction of cryopreserved embryos. Of those 133 cases, 11 cases (8.3%) were filed in federal court, and the remaining 122 cases (91.7%) were filed in state court. We sorted the cases into five incident categories 1). Of the 133 total lawsuits, the vast majority of 111 cases (84.1%) involved damage or destruction due to storage tank failure in two clinics in two states. Just three (2.3%) involved damage or destruction from other forms of mishandling; eight (6%) involved embryos lost or misplaced in the laboratory; five (3.8%) involved embryos lost or destroyed in transit; and six cases (4.5%) involved damage or destruction due to miscommunication or other human error.

Science Direct

The fast developing law in the area places family lawyers in a situation where they need to be aware of the legal and ethical issues arising.

As was written in an academic article on the issue three years ago, the law in this area is developing at a “bewildering pace.”

The Sofia Vergara case is a high profile reminder of the need for family lawyers everywhere to carefully consider the medical, legal and ethical aspects of stored embryos, particularly as we have regular reports on the breakthroughs in reproductive medicine and the challenges that this throws up for lawyers.

Sofia Vegara has reminded them of that pressing need for urgent ‘awakening’ of lawyers practising in an area that provides often confronting issues.

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