What happens in Georgia or another state when the dispute over custody has to do with a frozen embryo? The outcome cannot be predicted with certainty due to the fact that there are no comprehensive statutes at this time dealing with the problems that can arise from an in vitro fertilization situation. However, one way to avoid a potential child custody dispute is for the parties to sign an agreement concerning the future of the embryos should the parties separate in the future.
The problem came up recently in the real-life situation of two actors, Sofia Vergara and Nick Loeb. When they were engaged, the two froze embryos consisting of his sperm and her eggs. They broke up six months later and are now engaged in a lawsuit in which Loeb is trying to prevent Vergara from destroying the embryos. The issue is quite complex, since presumably if Loeb were given the right to hold on to the embryos, he would have to have them implanted in a surrogate.
Vergara is now engaged to another actor, and, in most circumstances, she would prevail in this unsettled area of law. Generally, the courts will hold that a person's interest in not becoming a parent trumps the other party's desire to have a baby. However, if there are special circumstances, such as one person being sterile or infertile, the options and potential outcomes may veer from the standard.
The growth of IVF in Georgia and nationwide has been rapid since the 1990s, but legal frameworks in the form of state statutes have not been enacted. Therefore, when parties have doubts about certain issues that may arise, they may benefit from having a custody agreement drawn up defining each party's rights in the event of a breakup or a divorce. According to experts on the subject, attorneys need to get more involved in defining, in writing, the legal obligations and rights of their clients in order to prevent child custody disputes over embryos.
Source: ibtimes.com, "Sofia Vergara-Nick Loeb Frozen Embryo Custody Case Raises Legal Questions", Barbara Herman, April 16, 2015