The Made-for-TV Legal Battle over Sofia Vergara’s Fertilized Embryos

While I’ve never litigated a Connecticut child custody case (I leave that to the top Westport & Greenwich Connecticut divorce lawyers), every once in a while a national family law case catches my eye…like the current court battle over Sofia Vergara’s frozen, fertilized embryos. It’s a case that has the heads spinning of even the best divorce / family lawyers in Fairfield County Connecticut.

The Issue – Who Has the Right to the Fertilized Embryos???

Vergara and her ex-boyfriend are currently in the throes of a first-of-its-kind legal battle over fertilized eggs. According to reports, the couple decided to freeze and bank the embryos in 2013, but did not want to incubate the embryos to “term” (that is, to a live birth through in vitro fertilization of Vergara, or alternatively, surrogacy) until the couple was ready to have the child.

As the couple was not yet married, it is reported that they both signed a written pre-fertilization contract, agreeing that neither party could incubate the embryos to term / birth without the other’s written consent. But nothing in the contract addressed the right to terminate or destroy the embryos. All those fancy Hollywood lawyers, and there’s still a contract drafting problem worthy of a bar exam question!

Can the Embryo Contract Be Voided on Public Policy Grounds?

So this Hollywood power couple breaks up in 2014. Vergara gets married to another Hollywood guy in 2015. And she wants nothing to do with her ex, and wants the embryos destroyed.

Not so fast–the ex-boyfriend wants the embryos, claiming that the contract should be voided on the grounds that in spite of the contract, the California court should not be permitted to terminate a living, fertilized embryo.

What follows is worthy of a Modern Family episode…the ex-boyfriend sues Vergara to restrain her from destroying the fertilized eggs. Vergara’s legal team fights back, arguing that, at most, the eggs should remain frozen indefinitely. Now Vergara’s ex-boyfriend is suing for rights to the embryos, so that he can use a surrogate to bring the embryos to term.

The lawsuit raises compelling legal and ethical questions: Should a man have the same rights as a woman over frozen, fertilized embryos? Can a court force an embryo to term / birth? Can a court order the termination of an embryo? Can individuals sign contracts which can delay fertilized embryos being brought to term?

Can Contract Law Eclipse Family Law?

A critical question here is whether the underlying pre-fertilization contract should be voided. And as any of the top contracts lawyers and attorneys in Stamford or Greenwich Connecticut can explain to you…just because there is a contract, it doesn’t mean it’s enforceable. Especially in a case like this one where the contract was actually drafted by the fertility clinic. You can’t enter into a contract for something illegal, something unethical, or something that flies in the face of years of family law jurisprudence.

So when two parties sign a boilerplate form agreement drafted by a fertility clinic, it may not hold much weight in a court of law, especially in a higher appellate or supreme court of law that just may lean a little more to the Trump side of the aisle on the issue of right-to-life.

Make Sure a Family Court Lawyer Reviews Fertility / Adoption Contracts

Perhaps a takeaway we can all agree on is to make sure any of the best Connecticut family court law firms review any written contract that deals with adoption, surrogacy, frozen embryos, sperm banks and child custody. The stakes are just too high not to set up a consultation, especially if there’s a chance your dispute can end up on the front page of the paper (or even, worse, page six!)