Today’s in vitro fertilization (IVF) and cryopreservation process (freezing of reproductive material) has undoubtedly provided couples with more ways to consider their family planning options than ever before. This is especially true for those who are undecided, not ready to start a family just yet or are dealing with a medical issue. While modern family planning keeps getting more interesting and more expansive, sometimes without proper planning – or asking certain questions – it can become more complicated.
Case in Point
In 2013, actress Sofía Vergara of the TV show Modern Family and her then fiancé Nick Loeb made the decision to preserve their options for having a family down the road. Together they underwent IVF to produce two viable (pre-)embryos using his sperm to fertilize her harvested eggs. The embryos were then frozen and safely stored.
The couple split in 2014. Despite both parties having signed a Form Directive document provided by the fertility clinic, in which they agreed to mutually decide what to do with the embryos in the future, shortly after their breakup Loeb waged a years-long legal battle against Vergara. Loeb wanted the court to deem Vergara an egg donor and strip her of her parental rights. In turn, he wanted to be granted full rights to have the embryos brought to term and birthed by a surrogate.
The legal process volleyed back and forth, and in 2017 Vergara sought a permanent injunction to prevent Loeb from bringing the embryos to term without her express written consent, as set forth in the original Form Directive. In 2021, two courts – in California and Louisiana – sided with Vergara, preventing Loeb from gaining full custody of the embryos.¹
Preempt the What Ifs
When a married couple commits to undergoing IVF and cryopreservation, no doubt the fertility clinic has them sign a mile-high stack of medical releases and other legal documents. What is not always discussed and documented is the couple’s determinations for the fate of their embryos in the case of what ifs: what if they divorce, what if one spouse dies, what if one spouse becomes permanently incapacitated and is unable to co-parent and so on.
Most reputable and responsible reproductive clinics in Florida will proactively assist the couple in discussing their options for the what ifs, reaching an agreement and putting it in writing. The most common agreements should a what if occur are for one spouse to give control of the embryos to the other spouse, to discard the embryos, to donate the embryos for approved medical research, or to donate the embryos to another person who wants to have a child.
In theory, this pre-planned agreement should leave little room for question or dispute in the event of a what if. However, this arena is advancing so quickly that comprehensive laws may not have caught up. For example, what happens if a couple divorces in one state, but their frozen eggs are stored in another state. To date laws governing the disposition (disposal, transference, etc.) of frozen embryos varies from state to state, with some ruling more often in favor of the party who does not want to develop the embryos while others more often award custody of the embryos to the party who wants to bring them to term.
Legal Limbo
As we know, working through a custody agreement during divorce proceedings can often be contentious and challenging. Now imagine that along the way, your client surprises you with news that they and their spouse underwent IVF treatment and have frozen embryos stored. This is exactly what happened in a case I recently mediated. We were close to penning the final agreement when the wife said, “what about our (frozen) embryos?” This was the first time both attorneys learned about the existence of the embryos. The attorneys and I were “deer in headlights.”
As with many couples who go through IVF, this couple was not advised by the fertility clinic or anyone else to document their intentions. Nor had they considered that one day they would be sitting around a divorce mediation table pondering what to do with their frozen genetic material.
This experience left me wondering how many divorcing couples think to inform their attorneys from the get-go that there is a different kind of custody or disposition agreement that needs to be worked out. It begs the question, how often do attorneys ask their client during the preliminary intake if they and their spouse have frozen embryos?
Being prepared to review options with the couple, especially with the assistance of a mediator, will help steer the divorcing couple to a mutual decision which will serve to protect their joint agreement in regard to parental rights. Regardless of the choice the parties make, reaching an agreement through mediation is preferable to allowing a judge to decide the fate of the embryos, as the matter is unique to each couple.
For the past eight years I have exclusively practiced family mediations, following my 18-year career in litigation. With my combined experience and expertise I am able to help both attorneys and parties tackle the challenging issues, work through the options and achieve an amicable outcome.
History of IVF & More
Incredibly, IVF and embryo transfer dates back to the 1890s, when Walter Heape, a professor and physician at the University of Cambridge, England, conducted research on reproduction in a number of animal species. While the medical community contemplated applying the science to humans, the first known cases of successful embryo transplantation in a mammal was accomplished with rabbits in 1959.
Attempts to achieve live birth in humans through IVF began in the early 1960s. On July 25, 1978, the world marveled over news of the birth of baby Louise Brown in Oldham, England – the first ever live human birth using IVF. Australia, the United States and France announced successful IVF births respectively in 1980, 1981 and 1982.²
According to a 2017 report from the U.S. Society of Assisted Reproductive Technology (SART), 1 million babies were born in the United States between 1987 and 2015 through the use of IVF or other assisted reproductive technologies, including use of an egg donor, sperm donor or adopted embryo.³
The Cost of IVF
According to Forbes Health⁴, a single IVF cycle performed in the United States, including ovarian stimulation, egg retrieval, embryo transfer and medications, can cost between $15,000 to $20,000. The range varies depending on the fertility center and the patient’s individual medication needs, which can account for up to 35% of the cost. Some but not all of additional expenditures include genetic testing (between $1,800 – $6,000), the embryo cryopreservation process (between $1,000 – $2,000) and embryo storage (between $350 – $600 annually).
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