On April 1, 2015, Nick Loeb refiled a lawsuit against his former fiancé, Sofia Vergara. Loeb’s suit seeks to legally stop the actress from disposing of two embryos that the couple created through in vitro fertilization six months prior to their split in November of 2014. The dispute, first revealed in In Touch on Wednesday, raises some rather new, confusing questions: Does Loeb actually have the legal right to take Vergara’s fertilized eggs and implant them in a surrogate without her permission? The answer isn’t simple.

Our country’s legal system is still struggling to find an answer to the question of embryo custody, and it’s so far been a bit of a mess. Only nine states have laws in place that dictate how these custody battles should be handled (Illinois, currently in debate, will soon be the 10th).

In cases across the United States, courts have shown a slight favor towards the party who is against the implantation of embryos created by them and their former partners. As George Washington University Law School Professor Naomi Cahn recently told the New York Daily News, courts typically don’t allow the “possibility of children being created over the objections of one of the parents.”

The method used by courts to determine the outcome of an embryo custody case has varied, but usually falls into one of three camps: the balance approach, the contractual approach, and mutual consent.

The balance approach, which is used in Tennessee, New Jersey, and Pennsylvania, attempts to, according to law blog Chicago Lawyer, “weigh one partner’s desire to use the embryos against the other partner’s wishes not to.”

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In the 1991 case Davis v. Davis, the first U.S. custody battle of its kind, a separated Tennessee couple argued over what to do with their stored embryos. The husband wanted them destroyed; the wife wanted them donated to a couple in need. The Tennessee Supreme Court sided with the husband:

The case would be closer if Mary Sue Davis were seeking to use the preembryos herself, but only if she could not achieve parenthood by any other reasonable means. We recognize the trauma that Mary Sue has already experienced and the additional discomfort to which she would be subjected if she opts to attempt IVF again. Still, she would have a reasonable opportunity, through IVF, to try once again to achieve parenthood in all its aspects genetic, gestational, bearing, and rearing.

In other words, a mother who wanted a baby but could not have biological children without using the stored embryos would be favored by the court. Because Mary Sue Davis did not want to use the eggs herself, her husband, Junior Davis, won the case.

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To say the least, the balance approach is situation-based, subjective, and highly emotional.

“This is dicey and complex because the question becomes ‘What should be considered?,’” says Elleni Kalouris, a licensed Illinois-based lawyer who specializes in family law. “Often, infertility is given a large consideration, as is the desires of the mom-to-be and whether or not the mother is willing to waive the responsibilities of the father. Of course, this isn’t exhaustive and each case has its own factors.”

Five states have settled on using a contractual approach to determine embryo custody. “Under a contractual approach,” Chicago Lawyer explains, “state courts agree to enforce contracts drawn up by the couple before the embryos were created.”

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Couples, when at an IVF clinic, will typically sign papers determining what happens to their embryos in the event of a separation or death of one of the partners. In his lawsuit, Nick Loeb alleges that nothing in the contract he signed with Sofia Vergara referenced separation. (Please note that Loeb and Vergara are referred to as John and Jane Doe within the lawsuit filings.)

In Touch reports:

The documents claim that when Nick and Sofía met at the California-based fertility center on Nov. 16, 2013 — four months after their engagement and prior to undergoing a second round of IVF — they got into a heated argument about what should happen to the new embryos in the event of their death. (The center provided forms to the couple for a decision about what would happen in the event of death — but not separation, Nick claims in the document. Because of this, he is also suing the center to prevent them from destroying the embryos.)

“Jane insisted that in such a circumstance, the Female Embryos be thawed with no further action,” state the documents. “John did not agree with Jane and refused to initial his agreement regarding that term.”

“Jane insisted that John agree to the destruction of the Female Embryos under that circumstance, and began vigorously berating him in the offices,” the documents claim, adding that Sofía had a history of physically and emotionally abusing Nick. “John Doe signed this portion of the Former Directive, even though he did not agree with it, in order to avoid further abuse.”

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You might assume that a contract signed at a reputable fertility clinic is legally air-tight, but you’d be wrong about that. Situations alter, couples break up, people change their minds about having children, and—as the dispute between Vergara and Loeb proves—contracts often leave out certain situations. Couples who are in love and wanting to have a baby typically aren’t thinking about what happens when they break up down the line.

When it comes to embryo custody, California, where Loeb and Vergara live, relies on informed consent agreements where both partners sign a contract recognizing any and all possible consequences of IVF. But again, this can get sloppy and certain situations can be overlooked.

The third way states (and many fertility clinics) tend to determine embryo disputes is by contemporaneous mutual consent, i.e. when both parties must sign off on the use of an embryo. Iowa, for example, requires “that both parties must agree to use the embryos at the time of implantation.”

“No embryo should be used by either partner, donated to another patient, used in research, or destroyed without the [contemporaneous] mutual consent of the couple that created the embryo.”

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And there’s another wrinkle: Could Vergara potentially argue that Loeb using her embryos was a violation of her 14th amendment rights? (The 14th amendment protects personal autonomy and has been featured prominently in reproductive rights cases such as Roe v. Wade.) “That argument was made by a man and it was rejected,” Kalouris tells me. “There’s no reason for me to believe that it would be successful with a change in the sex of a party.”

I have spent days researching embryo custody and bioethics and here’s what I can tell you: It’s a big fucking mess. The balance approach, the contractual approach, and mutual consent all have major drawbacks, mostly because getting divorced, deciding to have children or (in some cases both) are emotionally charged and complicated situations. Should a woman who’s no longer able to have children have her embryos taken away because her former partner no longer wants them? And what if the genders are reversed? There’s no easy answer.

IVF is a relatively new concept, the legalities of which are still to be determined, which is why the court cases surrounding it tend to be such extreme clusterfucks. Vergara is lucky in two ways: In embryo custody cases, courts tend to side with the person who doesn’t want to be a parent, and Loeb has a relatively flimsy case against her. But it’s still frightening that her ex is in a position to file this kind of lawsuit. The fight for reproductive rights is already an uphill battle and embryo custody is set to be a whole new challenge.

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Image via Getty.


Contact the author at madeleine@jezebel.com.

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