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Who Owns That Barcode-Encrusted Embryo?

Even though I’ve never seen Modern Family, I’ve been following the story of Sophia Vergara’s embryos because… well… it’s a “what if” nightmare come true.

What if a couple creates embryos together.  They sign paperwork that says they both need to give permission to use said embryos — standard procedure — but the judge agrees that the original form is not clear on what should happen to said embryos if the couple breaks up, as Nick Loeb and Sophia Vergara did before they transferred the embryos to a surrogate.

Technically, it would follow if both needed to give permission to use said embryos while they were together that it would follow that both would need to give permission to use said embryos now that they’re apart.  But the judge is still allowing Nick Loeb to sue for custody of the embryos, presumably so he can use them since his op-ed in the New York Times mentions how cruel he thinks it is to leave embryos frozen.

He calls it an “embryonic custody dispute.”

It makes me profoundly uncomfortable.  There were clear guidelines established in how they wanted to use the embryos while they were together, and the default would be to keep the embryos frozen — neither destroying them or using them — unless both parties agreed now that they’re apart.

I found it interesting that Loeb ends the New York Times op-ed with a simple bio: “Nick Loeb is a businessman.”

Because I feel like he’s trying to sell us something, and I don’t want to buy it.

What should happen to embryos in the event of a breakup?  Should someone be able to use them against the other person’s wishes?

*******

Gizmodo reported recently that, in the future, they will be able to add barcodes to eggs and sperm to ensure that the correct gametes are used to create embryos.  The technology exists, though it hasn’t been approved for human use yet.

I know mistakes happen — we all know mistakes happen — and yet the barcode thing both intrigued and repelled me at the same time.  It’s no different — in one regard — from a hospital ID bracelet that goes around the wrist of every person in the hospital; matching each child with his or her parent before being handed over.

And in another, barcodes feel a step closer to fulfilling the hand-wringing prophecy that we’re commodifying human life.  After all, what else do we slap barcodes on beyond cans of soup and jeans?

What are your thoughts on gamete barcodes?

14 comments

1 ANDMom { 05.26.15 at 9:13 am }

As part of our IVF consent forms (at 2 separate clinics), we had to decide what would happen in the event of a divorce, death of one spouse, or death of both spouses. In effect, we were pre-emptively assigning custody on notarized documents. It seems a saner time to decide these things than in the midst of a divorce, when emotions are running high.

2 Bronwyn Joy { 05.26.15 at 9:26 am }

I’m not sure how keeping embryos frozen is cruel. And I think this sort of thing should really be agreed up front, or at least talked through at length afterwards without pressure to act in a big hurry for no good reason. But I can still see cases arising where there are irreconcilable differences.

I don’t know. I feel a court would probably decide to have the embryos destroyed in such a case rather than allow their use when one partner was against it.

3 Katherine A { 05.26.15 at 9:33 am }

Like ANDMom, we also had to sign documents about what would happen to our embryos in case of death/divorce/etc, and we had a long discussion about what we both wanted to do with those embryos if these things happened prior to signing anything. From what I’ve read about the case and you mention in the post, Loeb signed documents that said the embryos couldn’t be used unless both parties agreed. I also find the bio at the end interesting, because as a businessman, Loeb has most likely dealt with plenty of contracts in his career. I have a hard time believing that he doesn’t know how contracts work. If he had a problem with that provision – as in he firmly and sincerely believed it was cruel to leave the embryos frozen as he’s stated – he needed to bring it up with his then-partner before he signed the contract.

4 nonsequiturchica { 05.26.15 at 10:08 am }

We had to sign similar documents regarding death/divorce/etc. I feel like Loeb is doing this just to keep his name in the news. It’s totally ridiculous.

5 Working mom of 2 { 05.26.15 at 10:39 am }

Yeah, we signed similar docs. Sounds like he’s just trying to get around them. And I suspect IVF clinics right now are double checking their forms and tightening them up if needed to prevent future problems like this.

I also find it odd that he is the one fighting for them. If it was a women in her 40s and these were her only hope it’d make a little more sense. But as a make (unless he has mskevdactorvor something) presumably he could conceive kids fairly easily even at his age. He has claimed it’s a religious thing but again, should’ve thought of that when he signed the contract.

6 Working mom of 2 { 05.26.15 at 10:39 am }

Stupid phone: male factor

7 Valery Valentina { 05.26.15 at 3:15 pm }

I think Dutch law is required to put the best interest of the child first. And being born while one parent doesn’t want you to exist sounds less than ideal. OK, overdoing it maybe. But fact is that the parents are already fighting over custody before there is a take home baby. Haven’t read the story, but it sounds like a situation where no one wins.
On barcodes, isn’t that just changing the opportunities for error to a different step(s) in the process?

8 Geochick { 05.26.15 at 3:28 pm }

I am curious why the judge is allowing him to sue. One line doesn’t really explain why. Huh.

Barcodes seem weird, but maybe necessary.

9 torthuil { 05.26.15 at 3:43 pm }

Sadly I don’t think the Nick Loeb/Sofia Vergara case will be the last of its kind (or the last of other legally/ethically dismaying cases). It goes with the territory. I actually think the publicity around the case is good because it might remind couples doing IVF to talk about these things before going forward, and/or remind clinics to have the correct agreements signed. I agree with previous posters that it would have made sense to discuss separation contingencies prior to creating embryos, but inevitably there will be cases where people don’t, or change their minds, or try to find a loophole, whatever. It does seem like the logical step would be for Loeb to move on and find another woman to have a relationship and children with. But I can see how it would be possible for someone to be attached to THOSE particular embryos and want them to be babies. The human heart is the human heart. It’s easy for an outsider to say “let it go and move on” – but if you knew that these were potentially your children, and even there was a tiny little chance they could be babies you could hold – would you be able to just let it go? Sure some people would- but some people may well fight to the end for that chance for the embryo to become a baby. I don’t know if that’s right or wrong, but I do know we are in a deeply emotional realm. And you can’t argue or reason emotions away.

10 Jill A. { 05.26.15 at 4:43 pm }

There is an old saying, “Hard cases make bad law.” I hope the judge rules narrowly, for this couple’s situation only. Because then next step could be something like she decides that instead of giving him full custody, she is willing to have them implanted, then changes her mind and aborts. Family law gets so very crazy and few judges are Solomon.

I don’t know about the barcodes. My preset disposition is to want to control all information about myself, to not give up any unless I can control it. Yet we cannot live that way. So, I don’t know.

11 Working mom of 2 { 05.26.15 at 4:56 pm }

Re the bar codes: do you mean on the straw, or the actual embryo itself? The latter doesn’t seem possible. I do think tracking the straw is probably necessary to avoid mixups as have happened on rare occasion.

Also I do worry that lawsuits like these could somehow result in restricting access to IVF (ala those personhood movements) so there is also that (eg, states pass laws banning destruction/discarding of embryos which basically makes IVF as we know it impossible).

12 Cristy { 05.27.15 at 6:53 pm }

This situation has me shaking my head. On the one hand, I can sympathize with Loeb wanting to be a parent. But not at the expense of forcing someone into a role they don’t want. From the beginning, it sounds like Vergara wasn’t as interested in this process. It is unfortunate that she agreed to undergo IVF to create embryos (and really pushes the argument for couples counseling for this process), but pushing her into parenthood will not make this any less messy.

If Loeb truly aspires to be a parent, I think he needs to consider other options. I completely understand his attachment, but bringing children into the world where one parent clearly doesn’t want them and has zero intention of being in their lives does not make for a happy ending. Oftentimes, parenting begins before birth.

13 illustr8d { 05.28.15 at 8:02 pm }

The cynic in me thinks he wants those embryos to be his so he can have them born via surrogacy and collect a check since he can now prove she didn’t want them. I would wish it was about something else. I just don’t think it is.

14 loribeth { 06.03.15 at 6:26 pm }

Totally aside from the main topic at hand, you really should try an episode or two of “Modern Family.” Not so much because of Sofia Vergara (the Latin spitfire schtick wears thin after awhile) but it’s a great ensemble cast (including a gay couple who adopted a Vietnamese baby) & great writing. Dh & I love it. They did an entire episode this past season that unfolded through texts, photos & Skype calls on Claire’s iPad & cellphone, which was absolutely brilliant.

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