Vergara legal battle over frozen embryos highlights important issues

By AdvocateDaily.com Staff

Although a legal battle is brewing in the U.S. between an actress and her ex-partner over whether he has a right to use their frozen embryos, in Canada, the law clearly sets out that both parties' consent is required to make use of an embryo where both parties' gametes were used to create the embryo, Toronto fertility lawyer Sara Cohen tells Newstalk 770. Global News

Before their split in 2014, actress Sofia Vergara and her partner Nick Loeb froze two pre-embryos with the intent of implanting them in a gestational surrogate, the article notes.

However, before doing so, they broke up. Although Vergara is now married to someone else, Loeb wants to use the frozen embryos and has launched a lawsuit in Louisiana against his ex, calling the embryos his “children” and “stating that they’re being deprived of their inheritance by not being born,” says the article.

“This is a strange case and certainly the first time I’ve ever heard of anything like it,” says Cohen, founder of Fertility Law Canada at D2Law LLP.

“Louisiana law says embryos have rights as a person,” says Cohen. “And they’re using this weird, nonsensical, pro-life, anti-reproductive freedom argument that these embryos are being denied their inheritance by not being transferred to a surrogate,” she adds.

Although Cohen explains that it is not a bad idea for couples to put a legal agreement in place when freezing embryos, she says people generally don't do so.

“In Canada, we have the Assisted Human Reproduction Act,” she explains.

“It stipulates that a doctor or clinic would not be allowed to make use of an embryo without the consent of both parties. Even if you wanted to put it in your prenuptial agreement, the act could override it.”

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