Surrogacy and Embryos: The Ins and Outs of Custody


With recent celebrity news shining a spotlight on the topic of embryo custody, we wanted to take a few moments to discuss options for embryos that are generated during the surrogacy process. Embryos that are not implanted initially are frozen and stored until they are needed.

Frozen embryos can be:

  • Used by the IPs with the same or another surrogate.
  • Donated to infertile couples.
  • Donated for medical research.
  • Disposed of by the clinic.

The cost of keeping embryos frozen can add up over time, but some couples just keep paying that monthly fee to put off making a decision about what to do with them. Sadly, that just postpones the inevitable. Before the embryos are created is the best time to decide what will be done with any that are not used.

The question is, who decides? You may have seen recent news stories about Sofia Vergara and her former fiancé, Nick Loeb. They created embryos in the hope of one day having children together. Now that they have split, he wants to take custody of the embryos and have them implanted in a surrogate, but Vergara does not agree.

Sometimes the law simply doesn’t keep up with technology. That’s why it’s important to take steps to protect yourself and your family. With embryos, for the most part, falling into a no-man’s zone between persons and property, courts are turning to contract law to settle disputes.

Most rulings have favored the party who does not want the embryos to be implanted. In their opinions, judges have stated that you can’t force someone to be a parent against their will. Create a contract that takes into consideration all possible scenarios and spells out each party’s intent to avoid leaving the decision in the hands of the legal system.

Who should have a say? Gestational surrogates provide no genetic material and will have no vested interest what is done with any embryos, but the egg donor may.

What are your personal beliefs? Involved parties may have religious or ethical issues with solutions that would result in the destruction of the embryos.

What resolution can all agree to? Perhaps everyone involved would be comfortable with the idea of donating the embryos to a third party.

Working with a lawyer who specializes in reproductive law and the experts at Surrogate Solutions can give you the peace of mind of knowing that your family is protected. We have many years of experience working with Surrogates, egg donors and Intended Parents from many states and can walk you through the intricacies of your surrogacy journey. Take the first step by contacting Surrogate Solutions today.

Leave a Reply

Your email address will not be published. Required fields are marked *