In February of this year news broke that Sofia Vergara, one of the stars of the hit show “Modern Family,” was being sued in California state court by her ex-fiancé, Nick Loeb. Mr. Loeb brought his suit in an attempt to void a contract governing what would happen to a very important shared asset—their frozen embryos.
When they created the embryos, the parties agreed that the embryos could not be used unless both parties consented. Unsurprisingly, now that the couple has split, Ms. Vergara does not consent to Mr. Loeb’s use of the embryos. But, Mr. Loeb argues he should be allowed to bring the embryos to life using a surrogate, rather than let them stay in frozen storage indefinitely.
California does not yet have binding case law on this issue, so it will be interesting to see what the court decides. However, in Oregon, it is unlikely that Mr. Loeb would be successful. In 2008 the Oregon Court of Appeals held that in a divorce between two parties, distribution of their frozen embryos would be governed by a contract the parties signed when they created the embryo. The court allowed the wife to destroy the embryos, per the contract provisions, despite the husband’s moral objection to their destruction.
Cases such as this are good examples of the confusion created when courts are required to step in to resolve messy domestic disputes. Even in situations where there is a contract between the parties, emotions and morals are so inextricably intertwined with the contract, that it is hard for parties to come to an amicable resolution. But, as courts around the country continue to resolve these case such as this, it will give parties a clearer understanding of how these contracts will be interpreted in the future.