An interesting case has begun in the state of Louisiana involving “Modern Family” actress Sofia Vergara. For the past year, Ms. Vergara has been battling her former husband for custody of her fertilized eggs. The proceedings took a complicated turn this month when her husband filed an action on behalf of the embryos, arguing that the frozen embryos have a right to life. As the action suggests, the husband would like to take steps to unfreeze the embryos and bring them to term. In the proceedings, he argues on behalf of the embryos that keeping them frozen, which Ms. Vergara allegedly wishes to do, would be “tantamount to killing them”.
The proceedings raise questions as to whether an embryo has a right to life, should have legal standing and whether the potential father and mother should have equal rights to make decisions regarding in vitro fertilized embryos. The state of Louisiana was chosen for the case because it legally recognizes an in vitro fertilized egg as a “juridical person” until it is implanted in the womb. The embryos are currently located in California but legal steps are being taken by the former husband to attempt to move the embryos to a facility in Louisiana.
Although this may sound like the stuff of science fiction, freezing embryos is a common procedure for couples undergoing in vitro fertilization, who often create more embryos than needed for a single procedure. Women looking to delay child birth may also choose to freeze embryos rather than eggs because the success rate down the road is higher when implanting previously frozen embryos than in it is for eggs that are unfrozen and then attempted to be fertilized.
The law in Canada is murky regarding ownership of frozen embryos, although the Assisted Human Reproduction Act prohibits the use of an in vitro fertilized embryo unless the donor has given written consent (although it is unclear whether this consent, normally given at the stage of donating reproductive material to create the embryo, may later be withdrawn). The Act sets out specific requirements for written consent from both donors of reproductive material to create an embryo which must set out the intended use of the embryo. If the embryo is intended to be implanted following the donor’s death, this must be specifically stated.
As estate planners, if clients have frozen reproductive material or embryos, it is important to canvass what their intentions are regarding these materials, to review the written consent and stated purposes for the material and, in the case of a fertilized embryo, any agreement that the donors of the reproductive material may have entered into. It is also important to discuss the donor’s thoughts on the use of the material following his or her death.
A link to the National Post Article regarding Sofia Vergara’s legal battles is accessible here: https://news.nationalpost.com/arts/celebrity/embryos-suing-modern-family-actress-for-the-right-to-life-in-bizarre-twist-in-custody-case-over-frozen-eggs.