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When parties commit to the emotional journey of creating embryos and implanting them through in vitro fertilization (IVF) or using a gestational carrier, the excitement of creating new life should be balanced with practical considerations. Despite the difficulty of considering the unlikely outcomes, recent cases have illustrated how important it is to contemplate how changing relationships can affect the fate of one’s embryos.
One very high profile battle over frozen embryos has been splashed across news and entertainment networks for almost two years. Modern Family star Sofia Vergara and her ex-fiancé Nick Loeb are currently locked in a legal battle over whether Loeb is entitled to two embryos they created together before their separation. Loeb contends the embryos deserve a chance at life, while Vergara relies on an agreement they signed with the fertility clinic which clearly states that the embryos should not be brought to term without the consent of both parties. As of December 6, 2016, Vergara was sued by her own embryos in the state of Louisiana. The lawsuit asserts that the embryos are being deprived of a trust set up for them in Louisiana by Loeb. At this point it is anybody’s guess at what will happen.
Contracts and Consent
One of the earliest cases of embryo disposition was decided by a Massachusetts court, which used a combination of contract analysis and the parties’ parental interests to reach a conclusion. In this case, a couple underwent extensive IVF treatments, which yielded a successful pregnancy, and left several frozen embryos that were not implanted. After the couple’s divorce, the ex-husband sought to block his ex-wife from using the remaining embryos to have more children. The couple had signed a consent form with their fertility clinic stating that if the couple separated, the embryos would be returned to the wife for implantation. Among the reasons the court disfavored the use of the clinic’s consent form was that its purpose was primarily to explain clinic procedures and define the relationship between the couple and clinic. Additionally, there was ambiguous language that outlined what would happen if the couple “[became] separated,” which the court read to mean something different than divorce. Perhaps more troubling was that the husband signed multiple blank consent forms, and his then-wife filled in the language to suit her wishes, that the embryos be returned to her in the case of separation. The court decided in favor of the ex-husband, stressing that “even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen embryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will.”
Balancing Interests with Last Chances
A few other recent cases center around women who faced a cancer diagnosis, and the possibility that subsequent treatment could result in infertility. Each woman and their respective partners opted to undergo IVF to preserve their chance to have a biological child. All three relationships ended, and legal battles over the embryos ensued. Two of the women were awarded the embryos, while one was not.
In the Illinois case of Karla Dunston, the judge ruled in her favor, granting her the right to use the embryos. Although the parties executed an Informed Consent Agreement with the fertility clinic it was vague on the subject of embryo disposition, with the text of the agreement even recommending consultation with an attorney to address that portion of the contract. The fertility doctor that counseled the couple testified that “we feel that it’s more appropriate for them to get legal counsel to document their specific desires about disposition, and in particular, if they ultimately split up.” Dunston and her then-boyfriend consulted with an attorney, but failed to follow through and sign any of the agreed upon plans. The court reasoned that in the absence of a signed contract regarding disposition of the embryos, their oral agreement was sufficient to demonstrate that the parties intended Dunston to use the embryos in the event she became infertile.
In a Pennsylvania case, Andrea Reiss was granted the embryos she created with her ex-husband because the contract they signed at the fertility clinic lacked certain provisions. Neither party signed the portion of the contract that outlined embryo disposition in case of divorce or death, and could not reach a consensus on the matter after splitting up. The judge ruled in Reiss’s favor, citing her inability to have a biological child through other means. He stated, “In this case, because Husband and Wife never made an agreement prior to undergoing IVF, and these pre-embryos are likely Wife’s only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all . . . the balancing of interests tips in the wife’s favor.” In the absence of clear contracts, these cases primarily hinged on the inability for both women to conceive a biological child, noting that the intent of the parties from the beginning outweighed the current wishes. In a recent California case, a well-executed contract with distinct details surrounding embryo disposition, helped steer the court’s ruling. Similar to other cases, Dr. Mimi Lee wished to use the embryos she created with her ex-husband before her cancer treatment, arguing that given her age (46) it was unlikely she could have any biological children. Despite that remote possibility, the court determined that Lee had done little to prove her concern in the years between her cancer treatment and the divorce, taking no other steps to preserve her chances of having a biological child. Dr. Lee also testified that she believed the contract from the fertility clinic was merely a formality and that it could be changed, having no real legal ramifications. The judge sided with Lee’s ex-husband and upheld the contract, which stated that in the event the two divorced, the embryos were to be thawed and discarded. Given the well-executed contract, the judge was unwilling to grant Dr. Lee custody of the embryos without the consent of both parties.
Back to the Future
Vergara had filed for summary judgment (a ruling made without going to trial) in the case in California. However, according to court documents, Loeb dropped his lawsuit on December 6, 2016, after a California judge supported Vergara’s motion to force Loeb to identify two past sexual partners who both underwent abortions. Loeb appealed the decision but was denied by the appellate court. If the case had not been dropped by Loeb, and we considered the above cases, it is unlikely the court would have ruled in Loeb’s favor. Vergara and Loeb entered into a contract, which clearly defined that the embryos should not be used if the pair separated. In addition to the lack of consensus regarding the use of the embryos, Loeb has shown no evidence that he is unable to have a biological child by other means. Ultimately, there appeared to be no compelling reason for the judge to grant him the embryos. However, the matter in Louisiana is a horse of a different color. Louisiana is a traditionally pro-life state, and places embryos in a special category where they receive special protections. It will be a interesting decision, regardless of the outcome.
Conclusion
The bottom line is that in the area of embryo disposition, contracts matter. Typically, courts would rather rule on words that have been carefully considered and agreed upon in a signed document, instead of balancing human emotion and individual desires. Parties who are pitted against each other to battle out intended parentage in court will be left with anguish. As adverse as they may seem when compared to the emotional side of bringing a new life into the world, when these issues are considered in a context of a well-executed contract, it can prevent heartache and lengthy, expensive legal battles down the road.
By Meghan McGregor and Joseph Cipriani
In June of 2015 the Supreme Court handed down the historic ruling of Obergefell v. Hodges, which granted same-sex couples the right to legally marry. This ruling erased inconsistencies among the states’ marriage laws and also rendered the discriminatory language in certain federal laws unenforceable. While the Court considered several reasons for its ruling, creating a stable family unit was of vital importance to the Court when reaching a decision.
“As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.” – Justice Kennedy
The Court’s intent seems clear. The rights of same-sex couples regarding children should be the same as heterosexual couples. Children play a fundamental role in the context of marriage, and the Court recognized the intermingling of the two. But given the obstacles of biological conception for same-sex couples, there remains a grey area when it comes to surrogacy.
It is well established that certain states have friendlier surrogacy laws than others. While the ruling in Obergefell doesn’t advance state laws by creating federal standards for surrogacy, it does help to level the playing field for same-sex couples who are married or are ready to marry. In situations where a couple is married (gay or straight) the barriers to being named as the legal parents of a child are far fewer. This is most evident in the realm of pre-birth orders.
In Colorado, Intended Parents may seek a pre-birth order from the court, which allows the Intended Parents’ names to be placed on the child’s birth certificate instead of the gestational carrier’s. This resolves any uncertainty concerning the parentage of a child, since the surrogate is presumed by statute to be the mother as the one giving birth and would normally be listed as such on the birth certificate. Colorado has very few restrictions regarding the genetic relationship between Intended Parents and child with regard to pre-birth orders. Whether only one party is genetically related, both are, or none are, the court grants pre-birth orders to both heterosexual and same-sex couples in almost any combination of scenarios. The only significant restrictions that remain are for unmarried same-sex couples (or those without a civil union) when only one Intended Parent is genetically related to the child, or when neither is.
“A [. . .] basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser.” – Justice Kennedy
While the federal legalization of same-sex marriage is a huge leap forward in giving equal rights to gay spouses, it fails to clear all the hurdles for same-sex couples. The modern family unit is ever evolving in its structure, and hopefully the law will continue to evolve with it.
Read the entire opinion here.
You’ve had your medical work-up, been matched with excited Intended Parents and you are now eagerly awaiting the next step in your surrogacy journey. So, what’s next? Your surrogacy agency and/or fertility clinic will require that you put into place a Gestational Carrier Agreement, also called a Gestational Surrogacy Agreement or Surrogacy Agreement.
Choosing Your Attorney
Both, you, the surrogate, and the Intended Parents, should always be represented by separate legal counsel regardless of whether your surrogacy arrangement is between friends, family, or through an agency. Most fertility clinics won’t proceed without a signed gestational carrier agreement in place first. It is essential for you to have an attorney experienced in assisted reproductive technology (ART) law who can walk you through your surrogacy agreement step-by-step and address any issues or concerns you may have. Surrogacy law is ever changing and can vary widely from state to state, sometimes even county to county, so it is important to choose an attorney who can navigate the complexities of what goes into creating these types of contracts. Each surrogacy agreement is tailored individually for you and the Intended Parents, and it is essential that you understand every provision and/or exclusion in that agreement.
The Contract Review
During the review of your surrogacy agreement, your attorney will go over your contract in detail with you to ensure that you understand every last detail. There are many important aspects of your agreement that need to be considered. Here are just a few:
Your Medical Insurance Policy
If you have been working with an agency, your case manager might have already recommended that the Intended Parents seek an insurance specialist to complete a review of your current insurance policy to see if a surrogate pregnancy is covered. If you are entering into a private surrogacy arrangement, i.e., not using an agency, you may want to have your policy reviewed before finalizing your agreement. Your attorney can recommend a health insurance reviewer to check what aspects of surrogacy, if any, your policy covers. If your current policy is not surrogacy friendly, now is the time to discuss your options with the Intended Parents. They may wish to purchase a specific policy that covers a surrogate pregnancy or purchase another medical insurance policy all together.
Lost Wages
If you work outside the home, lost wages are typically reimbursed by the Intended Parents. Should you need to attend doctor appointments, be placed on bed rest, or you require maternity leave post-partum, you will want to consider how much income will need to be replaced. A surrogacy arrangement should not place you in a position of financial hardship.
Post-Birth Contact
All parties will need to decide how contact with the child is handled immediately post-delivery and during the child’s life. As the gestational carrier, you have no genetic connection to the child you are carrying and you will be required to relinquish parental and custody rights to the child. Have you and the Intended Parents discussed this? Will they allow you to be a presence in this child’s life or are they requiring no post-birth contact at all? Will the child be told about the surrogate’s involvement in his or her birth? These are all important issues that should be addressed in the agreement to avoid potential future conflict.
Privacy and Confidentiality
We encourage an open and honest relationship. However, during your surrogacy journey, you must not disclose the Intended Parents’ identity to anyone not directly involved with your surrogacy arrangement without the explicit permission. This especially pertains to social media posts, blogs, and other public announcements.
Breast Milk
Are you going to provide colostrum and breast milk upon the Intended Parents request? If so, for how long? Will you be compensated? This is a time-consuming and potentially emotional commitment.
Contact During the Pregnancy
As your pregnancy progresses, you will be keeping the Intended Parents informed about your progress. You may have privacy and modesty concerns, however, some Intended Parents may want to be present for your doctor appointments. Consider if you are comfortable with this and make sure your agreement addresses any concerns you may have.
The Intended Parents may live locally, in another state, or in another country. How will you keep in touch with them and give them updates? Will you talk on the phone, Skype, email, text? Will you send pictures? If the Intended Parents live locally, will you get together in person?
Having a comprehensive agreement that both parties fully agree upon will help your surrogacy go smoothly. Whether you are jumping in with both feet as a first-time surrogate or you loved being a surrogate so much in the past that you are giving the gift yet again, your journey should be a joyous experience for both you and the Intended Parents. Choosing an attorney to represent you during this time is one of the most important decisions you will make. An attorney who focuses her practice on ART law makes it a priority to make the process fair and painless for all parties, and will know the intricacies of what needs to be provided in your agreement. At McArthur Law Firm we make sure every surrogate leaves the legal process with an agreement she is happy with, understands completely, and is ready to hand to her fertility clinic with excitement to move forward.
Regardless of age, marital status, or financial state, ensuring you have an estate plan is imperative. A will is a key part of that plan, and making your wishes known in a legally binding document can help ensure that the state does not decide what becomes of the things you leave behind. A trust is another useful way to ensure those you love are cared for after your death. While it is certainly important to determine who should get Grandma’s china, other provisions tend to be overlooked. Any individual who is a sperm or egg donor, or has embarked on the journey of IVF has several other matters to consider.
One important piece of the fertility and estate-planning puzzle is to determine what should happen to any genetic material, including embryos, after a parent has died. A fertility clinic should address this in its own contracts, however, that provision should match the intentions that the parties have included in their wills. Frozen embryos, eggs, and sperm can be used well into the future, resulting in several possibilities for their handling after death. Whether the person wishes for an embryo to be gestated after he or she has passed away is one of the most significant issues. Would one party want the other to use their genetic material to have another child after death? If so, would the deceased party wish to provide for that child in their estate plan? In addition, would other family members want to include the child in their estate plans as well?
If these pressing questions are not addressed in a legal document, it can have unfortunate consequences. A couple in Texas was killed by a gunman outside their home, leaving behind an 18-month-old son. The legal system was left to grapple with the question of what to do with the 11 embryos the couple froze before their death since there was no will that outlined the disposition of the embryos. Ultimately, because no court in Texas (or the United States for that matter) has ever been faced with this dilemma, the embryos were passed like any other “property” through intestate (without a will) succession. Because the couple’s son is their sole heir, he inherited the embryos. The embryos will remain frozen in storage until he reaches the age of 18, at which time he may decide what to do with the embryos. Leaving an 18-year-old to decide the fate of his potential siblings is a weighty consequence that carries significant emotion for simply failing to execute a will.
To complicate things further, laws vary a great deal regarding the administration of trusts and estates for children who are born posthumously to their parents. Federal judges and legislators tend to shy away from this area of family law when possible and have left this weighty issue for individual states to handle. Some states require written consent from a person wishing to be considered the parent of a child born posthumously, and there is inconsistency among others as to whether that person must be a spouse, or may be any individual. Some jurisdictions impose a timeline for inheritance so the estate can be administered in a timely fashion. For example, in Colorado a child will be treated as living if they are born to a surviving spouse within 45 months of the deceased parent’s death. Other states require the child to be either living or conceived at the time of the decedent’s death, eliminating posthumous conception as an option for inheritance. Many states have yet to rule on whether a posthumous child may inherit from a deceased parent’s estate.
If a surviving genetic parent will not use the embryos, other options exist. Another infertile couple may benefit from the donation of the frozen embryos for adoption. Perhaps there is a desire for the embryos to remain frozen and unused after a parent passes. If so, will that person’s estate assume the cost of preservation and storage? Addressing this is essential since some clinic contracts will stipulate that the embryos be destroyed if payment is stopped.
Estate planning and infertility are sensitive, complex matters that involve the greatest care and attention. When the two intersect, the compassionate team at McArthur Law Firm has the experience and knowledge to create an estate plan that meets all of your needs.