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Is it a father's prerogative or his right to change his mind?

In May, we wrote about a complicated custody issue between actress Sofia Vergara and her ex-fiance Nick Loeb (The fault lies not in the stars, but in custody and contract laws). In fact, it is complicated enough that part of the debate centers on whether it is a question about custody at all -- for some, it is a fight over property.

The subject of the dispute is a pair of pre-embryos, fertilized eggs awaiting implantation through assisted reproductive technology. The question is whether Loeb can keep the pre-embryos and presumably see them brought to term without Vergara's permission.

The Vergara matter is not resolved, but the Appellate Court of Illinois recently issued a decision in a similar case. The facts are different -- beyond the fact that this former couple are not celebrities -- and the differences may have contributed to the outcome.

The woman in the case was diagnosed with non-Hodgkin's lymphoma, a type of cancer. Her doctors warned that the treatment could result in infertility. Before her first treatment, she decided to prepare for in vitro fertilization at some point in the future. Her boyfriend agreed to provide the sperm. The initial idea was to have half of the eggs frozen and half fertilized. For medical reasons, all of the eggs were fertilized. If she were to have genetically linked children, her boyfriend would be the biological father.

According to court records, her boyfriend agreed to all of this, and he raised no objection after the couple broke up. That changed when his next relationship broke up. According to him, the possibility of his becoming a father but not being a part of the child's life was something his new girlfriend could not handle.

And he decided he didn't want to have that hanging over his head. He petitioned the court for an injunction that would prohibit the woman from ever using the pre-embryos. His objective was to “preserv[e] [his] right to not forcibly father a child against his will.”

The court's analysis was interesting and could be instructive should such a case come up in Minnesota. We'll explain more in our next post.

Sources:

MSNBC, "Embryo wars: Avoiding Sofia Vergara’s legal woes," Lisa Green, Aug. 3, 2015

The New Yorker, "Who Owns Pre-Embryos?" Madeleine Schwartz, April 28, 2015

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