Last week, “Modern Family” actress Sofia Vergara’s former fiancé Nick Loeb penned an op-ed for “The New York Times” regarding Vergara’s frozen eggs. The pair had initially frozen the eggs via in-vitro fertilization (IVF) in case they later wanted children, before their relationship ended last year. (Vergara is currently engaged to “True Blood” actor Joe Manganiello.) Now Loeb wants to unfreeze an eggs to implant within a surrogate, and have a child using his ex-fiance’s egg. (When the two were together, they had signed an agreement regarding using the eggs only with permission from both of them, but there wasn’t any discussion on what might happen if they split.) Vergara, as owner of said egg(s), is (naturally and understandably) refusing to release her eggs.
I wanted to find out of there was a precedent set for IVF egg custody. According to “Chicago Lawyer” magazine, there are no definitive laws or one-approach-fits-all (yet), but 10 states so far have made rules regarding IVF custody and procedure cases.
One big commonality between a lot of these approaches is an issue familiar to sexuality: consent. Courts are generally weighing the desires of each partner, called “balance of interests.” This can be applied if one partner wants to use the eggs, but the other doesn’t want that person to use them. Iowa takes a “co-consent” approach, in that both parties must agree to “sign off when the embryo is implanted in the woman.”
Contracts guide decisions in other states. In these instances, courts rely on “contracts drawn up by the couple before the embryos were created.” New York, Washington, Texas and Oregon follow this method.
Some states take a blended approach (kind of like a blended orgasm). Tennessee, New Jersey and Pennsylvania first look for existing contracts between both parties before moving on to consent.
Other states are complete outliers in their approach. Iowa has “contemporaneous-mutual-consent,” which is a written agreement that states that both parties must sign off on use of the embryos. Massachusetts is another outlier, stating that the woman receives custody of the embryos in event of divorce.
Vergara and Loeb’s situation may bring attention to this dilemma shared by other ex-couples, and it could drive inquiries and move future legislation forward. We’ll have to see how it plays out.