Family law lawyers are used to battling over custody of children to a point that some of the most extreme cases almost become typical. However, family law and custody is reaching into a new frontier as reproductive technology develops and changes further expanding the definition of children and ultimately the purview of the custody attorney. Leaving the personhood debate aside as it is a more appropriate conversation for our legislators, as reproductive technology expands, family law lawyers and litigants are forced to ask tough questions about whether the division of eggs, sperm and embryos is an appropriate subject for the custody trial or if it's more aptly an issue of property distribution (which complicates the issue for unmarried couples who don't have pending equitable distribution trials).
The most high profile embryo litigation in recent years is that of sitcom actress Sofia Vergara ho split from her fiancé, Nick Lebo, in 2014. In May of this year, Lebo was permitted to file for "custody" of the embryos which were created prior to the couple's split. Vergara argues that the parties had a contract that the embryos would remain frozen without the consent of both parties, while Lebo alleges that leaving the embryos frozen indefinitely is tantamount to killing an unborn child. It will take many months and a great deal of court fees to make a decision in this case, but what is clear from the judge's decision to allow the matter to be heard in family court is that at least this judge views the embryos as children. The catch will be, of course, that most court's apply something similar to Pennsylvania's "best interest" standard when deciding custody, and it's very hard to determine what is in the best interest of unborn children who are not likely to be born any time in the foreseeable future. Pennsylvania has grappled with this issue recently; however, like many cases dealing with frozen embryos, this case arose regarding a woman who would no longer be able to conceive as a result of undergoing chemo therapy for cancer treatment. Needless to say, this case tugged at the heartstrings of the Pennsylvania judge, and the woman was permitted to do as she saw fit with the embryos.
This debate also asks the question: can you force someone to become a parent when they don't want to be? As a matter of public policy in Pennsylvania, courts don't force parents to parent. This is the same reason why you can be held in contempt for not allowing the other parent to exercise their custody time, but there are no legal repercussions for choosing not to exercise your court ordered custody time. Another consideration is the child support issue. Should biological parents of children who they do not want to parent conceived from embryos they wanted to remain frozen be forced to pay support for these children until they are eighteen? It is likely that for policy reasons, Pennsylvania courts will apply a similar procedure to that used for sperm and egg donors and surrogates. This means that the biological parent will be permitted to waive all parent rights and responsibilities; however, this matter is complicated more by the fact that, unlike sperm or egg donors, there is an emotional and personal connection between the parties in cases like this, which will inevitably come into play.
Many of the unanswered questions can be addressed in a contractual agreement that perspective parents can enter into before producing the embryos. Though many couples hoping to make a baby are unlikely to want to discuss the what ifs of a break up, like a prenuptial agreement, the beginning is likely the best time to resolve issues that may crop up in the future. If you need assistance in crafting this kind of agreement, please contact our Pittsburgh office.