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Laws of Eve | Who owns the embryos?

Published:Monday | May 23, 2016 | 5:00 AM
Actress Sofia Vergara

It is common to speak about Hollywood stars and their children. But sometimes the discussion surrounds famous embryos, the most famous ones in 2015, produced by actress Sofia Vergara and her former fiancé, Nick Loeb.

Their legal battle over the ownership and the right to use frozen embryos that were produced during the course of their relationship creates a classic example of the issues that have taken the spotlight in this area of the law.

Persons who undergo fertility treatment may harvest and store eggs or sperms (called gametes) or use eggs and sperms to produce embryos (called pre-embryos before they are implanted). Before receiving treatment, persons are usually required to sign documents to indicate what should happen to the pre-embryos - whether they should be used or destroyed, and whose consent will be required for their fate to be determined.

This area of the law is fraught with difficulties, because it gives rise to moral debates as to whether pre-embryos are property. The issues are further complicated by the fact that the question of ownership may arise after the death of one of the persons who produced the gametes. In that scenario, should the directives signed by the parties still determine what should happen to the pre-embryos or should the administrator of the deceased provider's estate have a say in the outcome?

Some further legal issues emerge when one of the two providers wants to use the embryos to have children, while the other wants to destroy them. The arguments then surround the right to procreate and the right to avoid procreation, and their resolution tends to favour the right to avoid procreation.

 

UNDECIDED CASE

 

Vergara's case is still undecided, but a case decided in California in November 2015, involving Mimi Lee and Stephen Findley, may be a clear indication as to the likely outcome in the Vergara case. Lee, a medical doctor, and Findley, were married shortly after Lee was diagnosed with breast cancer.

In 2010, before undergoing cancer treatment, they agreed to use her eggs and his sperm to create and freeze embryos. They signed a document before receiving treatment, stating that the embryos should be thawed and destroyed if they got divorced. They got divorced in 2013.

At the age of 46, Lee was confirmed to be infertile. She wanted to implant the embryos into a surrogate so that she could have a biological child, while Findley wanted to follow the letter of the signed agreement and have them destroyed. Although Lee argued that the embryos represented her last chance to have children of her own, the court was of the view that even if she had the right to procreate, she did not have the right to do so with Findley.

In the end, Findley's right to avoid procreation with his ex-wife prevailed; and that outcome follows the same trend that we saw in the Australian case of G v G [2007] FCWA 80.

In that case, a married couple delayed having children although the wife had undergone surgery and had a history of endometriosis and ovarian cysts. Before undergoing fertility treatment, they signed an agreement stating that the embryos should be stored for a maximum of three years, and, in the event of separation, they should be discarded.

The parties separated and the wife wanted to discard the embryos while the husband wanted them to be transferred to his sole custody so that they could be donated to infertile couples or used for surrogacy. The court ruled that " ... the terms of the agreement between the parties about the use of their embryos should be implemented. The embryos should be allowed to succumb as the parties have now separated and can no longer achieve the purpose for which they consented to create and use the embryos."

In G v G, there was legislation that helped to determine the matter. However, it would seem that, even in the absence of the legislation, the terms of the contract signed by the parties are likely to be upheld.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsoefeve@gmail.com or lifestyle@gleanerjm.com.