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Freezing Your Embryos? First Consider These 3 Legal Issues

By George Khoury, Esq. on January 19, 2017 | Last updated on March 21, 2019

Reproductive technology has come a long, long way, and it does not seem to be slowing down. Unfortunately, the law has been unable to keep up the same pace, which has led to quite a bit of legal uncertainty surrounding embryo ownership and use.

If you are considering freezing your embryos, consider the following three legal issues before getting started.

1. Do You Have an Enforceable Contract?

Sure, you can, and probably should, sign a contract with your partner-in-embryo-creation about how, when, and if, the embryos can be used. But is that contract enforceable? There are several factors that are required for a contract to be enforceable, and when it comes to contracts about embryos, there's a chance the court won't enforce the contract terms if there is a really compelling reason not to do so.

2. Beware of Wacky State Laws

The laws relating to embryos vary from state to state. Sophia Vergara, from the TV show Modern Family, is fighting to prevent her ex-fiancé from using their embryos, and is doing so in two different states.

While the battle with her ex-fiancé over their frozen embryos was going her way in California, what can only be described as a wacky lawsuit was filed against her in Louisiana. That case is being brought on behalf of her own frozen embryos, which have a trust fund established on their behalf in Louisiana, which grants judicial personhood to embryos. The lawsuit filed on behalf of the embryos in Louisiana is uncharted territory.

3. Freeze the Pieces, Not the Pie

Embryo battles seem to pop up in the news with increasing frequency as reproductive technology continues to advance. The fight typically involves ex-spouses fighting over whether one of them can use the embryos that were created while the couple was still together.

As suggested by a law professor, an easy way to avoid the embryo custody battle entirely is to not freeze embryos, but rather to freeze the egg and sperm separately. This allows couples to take their own genetic materials upon separation. Also, this makes it easy to decide who pays what for the storage of the frozen genetic materials after a separation.

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