When a couple breaks up who owns the embryos?

This is a question that should be settled in the consent before any embryos are frozen. But apparently not always.

In an op-ed piece in the New York Times, Nick Loeb, Sofia Vergara’s ex-fiancee bemoans the fact that he does not have control of the embryos they created together. He writes, “I filed a complaint in Santa Monica, Calif., using pseudonyms, to protect two frozen embryos I created with my former fiancée. I wanted to keep this private, but recently the story broke to the world. It has gotten attention not only because of the people involved — my ex is Sofía Vergara, who stars in the ABC series “Modern Family” — but also because embryonic custody disputes raise important questions about life, religion and parenthood.

When we create embryos for the purpose of life, should we not define them as life, rather than as property? Does one person’s desire to avoid biological parenthood (free of any legal obligations) outweigh another’s religious beliefs in the sanctity of life and desire to be a parent? A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects? These are issues that, unlike abortion, have nothing to do with the rights over one’s own body, and everything to do with a parent’s right to protect the life of his or her unborn child.

In 2013, Sofía and I agreed to try to use in vitro fertilization and a surrogate to have children. We signed a form stating that any embryos created through the process could be brought to term only with both parties’ consent. The form did not specify — as California law requires — what would happen if we separated. I am asking to have it voided.

My lawyers have identified 10 other cases in the United States in which a parent tried to have a fertilized, frozen embryo taken to term against the wishes of an opposing parent. In eight of those cases, the parent seeking custody lost. In the other two cases, one in Pennsylvania and one in Illinois, a woman was awarded custody of fertilized embryos over the man’s objections. In both cases, the woman had undergone chemotherapy treatment and the embryos were her last chance to have a biological child; judges ruled that the woman’s interest in becoming a parent outweighed the man’s interest in not becoming a parent. In the Illinois case (now on appeal), the judge found that the form the couple signed was not the binding contract, and instead enforced a verbal promise the man made to help the woman have children.

Many have asked me: Why not just move on and have a family of your own? I have every intention of doing so. But that doesn’t mean I should let the two lives I have already created be destroyed or sit in a freezer until the end of time.”

These are good questions. In the remainder of the article he recounts their story if you want to read it. But I think the message is clear: think of all these eventualities before freezing embryos.

Now more media has noticed this controversy. ABC World News reported on “a very personal battle playing out involving a star from ‘Modern Family,’” a battle that “could be playing out among couples across this country.” NBC Nightly News reported, “Sofia Vergara and her ex-fiancé Nick Loeb are locked in an ugly fight over their frozen embryos,” a “dispute raising tricky legal questions about not only their embryos but the 600,000 or so others in deep freeze in this country.” NBC News correspondent Stephanie Gosk explained that Loeb seeks “control of the embryos,” wanting “a surrogate to be implanted with [them] so he can raise the babies on his own.” Even though a signed agreement between the couple “states any change to the embryos must be mutually agreed to,” Loeb has argued in “court documents” that the agreement does not specify what should “happen in the event of their separation.” Stephanie Caballero, of the Surrogacy Law Center, was shown saying: “Unless there is a compelling reason to force somebody…to potentially become a parent, the case law has sided with Sofia’s side.”