1:39PM BST 17 Apr 2015
Modern Family actress Sofia Vergara is reportedly engaged in a legal battle with her ex-fiancé Nick Loeb over their embryos.
Yep, you heard me correctly.
Back in 2013, the couple underwent IVF, which resulted in fertilised eggs created from Loeb’s sperm and Vergara’s eggs. The couple then split up and the two embryos were preserved at a fertility centre, according to In Touch Weekly.
The publication has seen state court documents that show Loeb has now filed suit against Vergara.
Why? He wants to keep the embryos so he can have children in the future, while Vergara “hoped for the female embryos to ultimately be destroyed.”
The reports have surprised many. Stereotypically, you might have expected Vergera to be the one who wanted to keep the eggs, rather than get rid of them.
The actress is now engaged to actor Joe Manganiello and has spoken about potentially having children with him.
But it’s Loeb who wants to keep their original embryos. He says the couple signed an agreement explaining what would happen if one of them died – but not if they separated.
It leads to a complicated situation, where a judge in America will have to try and make a difficult decision based on whatever contract they initially signed.
Here in the UK, the paperwork is generally more concrete.
Dr Yau Thum from the Lister Fertility Clinic, tells me: “In the UK for a couple to go through such treatment, they’d have to sign all the consent forms. If the couple split up, if one party withdraws the consent, the other party can’t use it at all.
“It works both ways – if the man wants to go ahead but the woman doesn’t, or if the woman wants to go ahead and the man doesn’t – then they can’t.”
It means that British couples generally wouldn’t find themselves in the same situation as Vergara and Loeb.
So long as one of them withdrew the consent, the fertilised embryo could not be used. Even if they didn’t split up, but just had a change of heart, the procedure couldn’t go ahead.
“You can always change your mind – until the embryo is transferred back into the woman’s uterus,” stresses Dr Thum.
The Human Fertilisation and Embryology Authority – the leading experts in the UK – explains that if someone wants to withdraw consent, they just have to write to the clinic.
The clinic then asks the other party involved. If they agree, and the embryos are removed. If they don’t? The two parties have a 12 month period to resolve the legal issue before the embryos are destroyed.
Cases rarely go to court, but there have been some issues. Recently Beth Warren won the right to stop her husband’s sperm being destroyed after he died of cancer, even though their consent forms were due to run out of date.
It led to a long legal battle, and shows just how many issues can arise around sensitive subejcts such as egg freezing. It forces couples to consider what will happen if one of them dies, they split up, or they lose their mental ability.
Alice Mann, founder of ‘Egged On’ blog, says it can be an incredibly unromantic process:
“It’s weird how romance, or declarations of true love and commitment in the 21st century could be about giving your partner rights over your frozen eggs, or frozen sperm, in the event of your death, but I guess that’s kind of the brave new world that we’ve ended up in.
“There are lots of things that any woman freezing her eggs – or any couple freezing embryos – need to think about – from an emotional and ethical perspective. I think it’s just common sense to consider all eventualities.”
She explained that Vergara’s case was a good example of how complicated things can get with this fledgling process: “It clearly indicates how new-a-technology freezing – of both eggs and embryos – really is. And how society and the law are struggling to keep up with it.
“Though it is strange that Loeb, who, let’s be honest, doesn’t have the same time restrictions as a woman – reportedly wants to preserve embryos so that he can eventually have his ex’s children. That just strikes me as very odd. If he wants kids in the future, he could, one assumes, have them either with a new partner, or if he’s on his own with a donor egg from someone he’s not in a relationship with.”
If anything, it is typically the woman who is more keen to keep the embryos. But this case shows the roles can be reversed.
For Mann, the whole process was very different.
She was single when she froze her eggs and had two choices – either to freeze them on their own, or have them fertilised by an anonymous donor and frozen as embryos.
“Either way, I was the only one who had a “right” to those eggs or embryos, and I had to sign a lot of paperwork that specified what would happen to them if I died, or decided not to use them,” she says.
“In the end I chose just to freeze eggs, not embryos.
“I suppose if I were in a serious relationship, then I might consider adjusting the paperwork so that my partner had rights over those eggs if I died.”
Legally, fewer issues do arise from a woman freezing her eggs alone, or with an anonymous donor – doing it with a partner is where consent can become more complicated. As Vergera and Loeb are probably just finding out.