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Modern Family Star in Legal Dispute over Frozen Embryos

Modern Family star Sofia Vergara and her ex-fiancée are in the midst of a legal dispute over the fate of frozen embryos the couple banked during their relationship. Vergara’s ex-fiancée wants to have the embryo’s implanted using a surrogate. Vergara, who is currently engaged, opposes use of the embryos and wants them to remain frozen indefinitely. If the petition is granted, what parental rights would a person in this position have over the child?

Dealing with Frozen Embryos in Florida

Couples seeking fertility treatments through in-vitro fertilization, where egg and sperm meet in lab and the resulting embryo is implanted into the woman, generally create several embryos. Florida law requires that any couple going to a clinic to create embryos in anticipation in-vitro enter into an agreement with the clinic and/or physician regarding the disposition of eggs, sperm or pre-embryos in the event of divorce, death or other unforeseen circumstances. It is safe to assume that in Florida, the break-up of the relationship that resulted in the embryos would qualify as an unforeseen circumstance.

If the couple fails to enter into a written agreement, or if the agreement does not specify or otherwise make clear their intent, Florida law provides as follows:

  • Eggs and/or sperm remain under the control of the party who donated them;
  • Pre-embryos are under the joint control of the couple who facilitated their creation;
  • Pre-embryos transferred after the death of one of the parents are not entitled to inherit from the deceased parent’s estate, unless provided for in his or her will.

A Florida couple finding themselves in the same situation as Vergara and her ex face a similar predicament – if the parties cannot agree on what to do with the embryos, they will have to go to court. But would the court allow one parent to have the embryos implanted, thus, in effect, forcing the other party to become a parent? Even if the party who wants to use the embryos agrees to waive their right to seek child support from the other party – which is what Vergara’s ex has said he will do – the fact remains that the embryo is the biological child of both people.

Case law on the issue of whether one party can unilaterally decide to implant the embryos in the hopes of conceiving a child seems to favor the party not wanting to become a parent. In a 1992 Tennessee case, the court sided with the husband who wanted the embryos destroyed (versus the wife, who wanted to donate them), on the grounds that his right to not become a parent (or in this case, to have his biological children out somewhere in the world) outweighed the right of the wife to have children (or donate them) under the constitutional right to privacy.

A similar case is currently under consideration by the Illinois Court of Appeals.

Boca Raton Family Law Attorney

Drawing on more than 50 years’ combined experience handling divorce, child custody and other family law issues, you can trust the Boca Raton family law attorneys at Schwartz White. Our dedication, thoroughness and knowledge means you can rest easy knowing that your case will be handled by professionals who will treat it – and you – with the seriousness and respect you deserve. Call us today at 561.391.9943 to schedule your free initial consultation.

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