The complicated story of assisted conception has taken another turn in the American court case of actress and model Sofia Vergara. She is now is being sued by her own fertilised eggs in a right-to-live lawsuit in Louisiana, which case has been brought by her ex-fiancé Nick Loeb. According to court papers, the “embryos” were conceived via IVF treatment but the couple split up and they were never allowed to further develop or implanted. Mr Loeb’s solicitor say the embryos, who are apparently called Emma and Isabella, are “suspended in a frozen stasis of suspended animation” as Ms Vergara has refused to agree to their continued development. Ms Vergara who is now married to actor Joe Manganiello, does not want to have children with ex boyfriend Loeb and denies they are embryos, saying they are instead frozen fertilized ova. Her solicitor has suggested that if Mr Loeb really wants a family he “should hire a surrogate and an egg donor and create one without dragging Vergara through another unnecessary legal battle.”
This case may possibly turn out to mirror a decision (although not the facts) of the English courts a number of years ago in the case of Natalie Evans, which then went to the European Court of Human Rights in 2007. Ms Evans was not permitted to use her own fertilised eggs following IVF treatment as the eggs had been fertilised by her ex-partner who withdrew his consent after they separated. Ms Evans became infertile as a result of chemotherapy and her very last attempt to have her own biological children was ultimately denied.
This really is a very complicated area of law and for anyone thinking of using a surrogate, please get in touch or come and see us and get legal advice first. Issues of consent are always going to crop up and there exists a common misconception that consent at the start of a surrogacy arrangement is consent throughout. Regrettably that is not the case.