It is common to see divorced or separated parents fighting over custody of a child, but we didn't think we'd see the day where an ex-couple would be fighting over the custody of a frozen embryo. It sounds like something out of a sci-fi movie, but now the courts may be forced to answer the question: who has the legal right to a frozen embryo?
In one of the most interesting family law cases we've read about in a while, actress Sofia Vergara and her ex-boyfriend Nick Loeb are in the midst of a situation that may force the courts to answer this question. They got to this point because while they were still together they froze two embryos, using her egg and his sperm. Now that they've broken up she wants the embryos to be destroyed, but he insists on keep them.
The problem here is what should be done with the embryos if the "owners" can't agree. In order to reach a resolution the main issues that may need to be addressed by a court are:
1) Should the frozen embryo be treated like a child?
2) Can a parent make a claim for custody of an embryo?
Once these questions are answered and depending on how the courts answer these questions there may be some clarity on at least part of the issue. Another tough issue the court will have to tackle, if it gets to this point, is who to give custody of the embryo to. Is one parent given preference over the other? How will the court take into account each person's position on what should be done with the embryo?
In the normal Pennsylvania child custody situation the court makes a determination of custody based on the best interest of a child. But in this situation, how does the court decide that? As far as we know family court judges don't have a way to see into the future and be able to determine what might be in the best interest of child that has not been born.
There is no doubt that this case is much more interesting than the standard run of the mill child custody dispute, but that makes it that much more complicated. And if you are like us you can't wait to find out how the court will decide these difficult issues as it something that may come up again in the future. For updates on this case continue to check back with our Pennsylvania Child Custody blog.