Modern science and technology have afforded infertile couples the ability to have a child of their own through in vitro fertilization. Recently, stories in the mainstream media have discussed the legal disputes between couples who froze fertilized embryos before they split up where one of the members of the couple wishes to use the fertilized embryos to have a child, but the other does not. Particularly, the battle between Modern Family star, Sofía Vergara and her ex-fiancé Nick Loeb has had significant media attention. Nick and Sofía agreed to undergo in vitro fertilization, intending to use a surrogate to have their biological child. Nick filed a complaint in Santa Monica, California seeking to prevent Sofía from destroying the remaining frozen embryos. Another case addressing the fate of embryos, also out of California, involves a divorced couple, Dr. Mimi Lee and Stephen Findley, who agreed to freeze five embryos after Mimi was diagnosed with breast cancer. The factual circumstances of these cases are diametrically opposed. The frozen embryos in the Vergara/Loeb case are not Nick’s last chance to have a child. However, in the Lee/Findley case, the frozen embryos are Mimi’s last chance to have a biological child due to her cancer treatment.
What would New Jersey law dictate if the two factual circumstances presented in the California cases were before the New Jersey Courts? As most attorneys and law students have heard before . . . it depends.
In vitro fertilization requires a woman to undergo an invasive procedure which involves a series of hormonal injections to stimulate the production of eggs. In a typical menstrual cycle, a woman will release one egg. In vitro fertilization allows a woman to produce multiple eggs which are removed from her body. If the eggs are viable, they are inseminated with sperm and incubated. Then the embryos are either implanted in a woman’s uterus, or they are cryopreserved and stored for future use (there is a case where a frozen embryo was used eighteen years later resulting in a live birth). During the in vitro fertilization process, couples have the choice of using their own gametes to produce the embryos or use a donor. Egg cells must be fertilized before being preserved because unfertilized cells are not only difficult to preserve but once they are preserved, they are difficult to fertilize.
Couples should consider what will happen with the embryos if they split up. For instance, some people enter into a contract to define what is to happen with the frozen embryos in the event of separation or divorce. Couples can either choose to donate the frozen embryos to research or to other infertile couples, or they can have the embryos destroyed. There are many legal issues that can arise when a couple separates or divorces regarding what is to happen with the frozen embryos.
New Jersey courts have recognized four options for the disposition of embryos which are: 1) enforcing a dispositional agreement and, in the absence of a contract, giving preference to the party wishing to avoid parenthood; 2) refusing on public policy grounds to enforce a pre-existing agreement and enforcing the right of one of the divorcing parties to refuse parenthood; 3) recognizing agreements to dispose of embryos made prior to divorce, but permitting a party to change his/her mind up to the point of use or destruction of the embryos; and 4) enforcing an agreement to dispose of the embryos for non-reproductive use.
In J.B. v. M.B., 170 N.J. 9 (2001), a married couple decided to use in vitro fertilization due to the wife having difficulty becoming pregnant. The parties signed a consent form providing that “all control, direction, and ownership of [their] tissues will be relinquished to the IVF Program under the following circumstances: 1. A dissolution of [their] marriage by court under, unless the court specifies who takes control and direction of the tissues….” Id. at 14. The procedure resulted in eleven embryos. Id. The couple used four of the embryos and seven remained frozen. Id. The couple later separated and the wife wished to have the remaining embryos destroyed; the husband objected stating he wanted the embryos to be implanted or donated to other infertile couples because that is what the parties verbally agreed would happen with the embryos. Id. at 14-15.
The trial court found that the parties used in vitro fertilization to create a family together which was no longer possible because they divorced. Id. at 15. In addition, the husband was not infertile and could have biological children in the future. Id. Since the husband sought control of the embryos to donate them to another couple, the court concluded that the wife had “the greater interest and should prevail.” Id. at 15-16. The husband appealed. On appeal he argued that his constitutional right to procreate had been violated by the trial court. Id. at 16. The Appellate Court found that destruction of the embryos would not impair the husband’s right to procreate because he still had the capacity to father a child. Id. Allowing the embryos to be donated to another couple, however, would interfere with the wife’s right not to procreate. Id. The Appellate Division did not decide the case on constitutional grounds, but rather on contractual grounds. The Court concluded “that a contract to procreate is contrary to New Jersey policy and is unenforceable.” Id. at 19.
The case was appealed to the New Jersey Supreme Court where the Court relied on the Wife’s right not to procreate. The Supreme Court found that the consent form that the parties entered into did not manifest the parties’ clear intent regarding disposition of the embryos in the event of divorce. Id. at 20. The document provided that the IVF program retains control over the embryos unless the parties choose otherwise in writing, or unless a court specifically directs otherwise in an order of divorce. Id. Since the parties never entered into a separate binding contract providing for the disposition of the embryos, the IVF Program possessed the embryos. Id. at 22. Therefore, based on the consent agreement, the parties had only agreed that in the event of their divorce, disposition of the embryos would be directed by the Court. Id. The Court held that agreements entered into at the time of in vitro fertilization will be enforced, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any embryos. Id. at 30. Thus, the Court ordered that the embryos be destroyed. However, the Court did not address what would happen in a case where the infertile party seeks use of frozen embryos against the wishes of his or her partner, noting only the possibility of adoption among other considerations in the court’s determination.
Thus, it seems that in New Jersey, Sofía Vergara would be more successful in her bid to destroy the frozen embryos. She and her former fiance signed a consent form stating that the embryos created through the process could be brought to term only with both parties’ consent. The consent form did not state what is to be done with the embryos if the parties separated, which is required by California law. Yet Nick’s arguments would be more fallible in New Jersey. First, Roe v. Wade, 410 U.S. 113 (1973),and its progeny make it clear that U.S. constitutional law does not consider a fetus a “person” for the purposes of the due process clause of the Fourteenth Amendment, and would likely apply the same analysis to an embryo. Second, based on J.B. v. M.B., 170 N.J. 9 (2001), since Nick is still capable of having biological children and has indicated every intention of doing so, Sofia’s right not to procreate would likely prevail.
The case of Dr. Mimi Lee and Stephen Findley, however, would be more of an unanswered question were it to occur in New Jersey. In this case, the embryos are Mimi’s last chance of having her own biological children given her breast cancer treatment. While most of the cases across the United States resolve in favor of the individual seeking to avoid procreation, it appears that courts may favor the position of the infertile party who could not procreate without those frozen embryos. In New Jersey, J.B. v. M.B. left the issue of what should happen with frozen embryos when one party is infertile open. But, in Reber v. Reiss, 2012 Pa. Super. 86, a Pennsylvania court awarded frozen embryos to a wife diagnosed with cancer where it was her last chance to have a biological child.
What happens with frozen embryos upon separation or divorce is a complex issue. If you and your partner have produced frozen embryos and are considering separation or divorce, consult an experienced divorce attorney to protect your rights.