Frozen Embryos: Who Gets Them in a Divorce?

Frozen Embryos: Who Gets Them in a Divorce?

A recent legal battle between Sofia Vergara and her ex-fiance, Nick Loeb, has pushed into the spotlight the issue regarding what to do with frozen embryos after a couple has separated. After the couple’s break up, Loeb filed suit against Vergara (under “John Doe v. Jane Doe”) in an effort to preserve the two female embryos conceived through in-vitro fertilization (IVF) during the couple’s engagement. The couple, who only enacted legal documents describing the terms of the embryos upon the deaths of each Vergara and Loeb, are lost as to the legal rights of ownership due to the couple’s separation; Loeb is filing suit to keep the embryos viable for later implantation for his own children. Past case law, especially due to the fact that many states do not have laws on the books to address this issue, has held that prior legal agreements between the couple generally can be upheld if controversy arises.

The Legal Status of Pre-Embryos?

Now that IVF has become one of the most used methods for child conception for those who are infertile, it will only be a matter of time before the issue of legal status and custody issues come to the forefront of civil cases. There is a split among states about the legal status of pre-embryos. Some states determine that life starts at fertilization and therefore, pre-embryos can never be destroyed. Other states treat the pre-embryos as property and look at ownership rights. Finally, some states weigh and evaluate the circumstances and rights of the parties before assigning custody of the pre-embryos.

South Carolina: Uncertain Future

South Carolina has not yet decided where to draw the line when it comes to pre-embryos and which legal status to assign the pre-embryos. A current bill, the Personhood Bill, which has been consistently proposed and shot down for 16 years, would assign the legal status of personhood to the pre-embryos, dictating that life starts at fertilization and therefore the pre-embryos have their own personhood rights and cannot be destroyed. This bill would ultimately determine that no matter who receives custody of the frozen embryos, the embryos must always remain, even if never implanted.

Protection of Pre-Embryos and Rights in Legal Documents

Because the issue of custody and personhood in South Carolina has not yet been established by the judiciary, it is important that any couple looking to IVF understand how to protect themselves. Currently, the best form of protection is to outline all circumstances that may arise surrounding the embryos and create legal consequences to those circumstances. It is important that either in a prenuptial agreement, postnuptial agreement, or other legal document executed, both parties imagine and agree to the outcome of the embryos when one spouse dies or both spouses die, upon separation or divorce, or even the destructibility of embryos or the possibility of donation of embryos to others.

The Importance of Legal Protection

Though there is no law that requires a person to become a parent against their will, a legal document could state the extent to which each individual, after a separation, might have a role in the child’s life. For example, if the agreement permits that the child is the biological child of both individuals, if one receives the embryos during the divorce and implants them, it is possible that the other individual will have to pay child support for any resulting child. As can be seen, there is importance in outlining all duties, obligations, and rights at the outset of IVF.

Experienced Family Law Attorneys in Mount Pleasant, Charleston Area

Pre-embryo custody is just one of the many issues that needs to be determined when divorcing your spouse. The experienced family law attorneys at Klok Law Firm LLC can provide support and guide you through the divorce process. Contact Klok Law Firm LLC today for an initial and confidential consultation.