Freezing Eggs For Future Parenthood? Here Are Two Legal Issues To Consider

Melissa Gorga of Real Housewives of New Jersey shared her future parenting plans during a recent appearance on the Wendy Williams show. Gorga, a mother of three, is freezing her eggs as a way to leave her options open for more children in the future. 

“I’m in the process of freezing my eggs just in case!” the reality star shared with Wendy. Gorga cites the busy work schedule she and husband Giuseppe “Joe” Gorga, keep as one reason why the couple may need to hold off on adding to their family for now. Gorga is also open about the physical realities of a future pregnancy, including the option of using a surrogate. 

“I had already said that if I do decide to do it, it would be through in vitro, because my tubes are tied, and I would probably use a surrogate,” she shared. 

Gorga is far from alone in storing frozen eggs to preserve the possibility of future biological children. According to the researchers from the Human Fertilisation and Embryology Authority in the UK, egg freezing is the fastest growing form of fertility treatment, with average increases of 10% each year of women seeking out egg retrieval and storage. 

Are you considering freezing your eggs? In additional to personal questions you need to answer when taking this step, there are also two key legal factors to consider. Let’s take a look. 

Surrogacy: Know the Law 

When women decide to have biological children later in life, it’s simple human biology that in their 40s or beyond, a woman’s chances for becoming pregnant and sustaining a healthy pregnancy are lowered. This is not meant as discouragement: Many women do go on to get pregnant and have children in their late 40s even and beyond. However, it just makes practical sense that later-in-life moms may want to explore the option of surrogacy, as Gorga appears to be doing. 

If you do decide to use a surrogate, New Jersey’s surrogacy law outlines a number of rules that must be followed by both the intended parents and the surrogate (legally known as the gestational carrier). These include:

• The intended gestational carrier (surrogate) must be at least 21 years old, have given birth to at least one child, completed medical and psychological evaluations and retained an attorney independent of the intended parent or parents. 
• The surrogate’s own egg can not to be used. All procedures must be carried out using a physician.
• Intended parents must also have undergone a psychological exam prior to establishing the contract.
• A surrogacy agreement (contract) must include language that allows the gestational carrier/surrogate to choose her own medical care for reproductive and prenatal care, labor, delivery and postpartum care. 
• Intended parents are permitted to pay for medical care, as well as living expenses and legal costs associated with the agreement. 
• Once the surrogate becomes pregnant, parents must file with the courts to be named on the child’s birth certificate. The child’s birth certificate will name the intended parents as the sole legal parents of the baby. No adoption will be needed. 

We have more information on surrogacy here: New Jersey Surrogacy and Sperm Donation Law.

Frozen Embryos: Make Decisions In Case of Divorce 

Does your family planning include creating frozen embryos for future use? For any couple that decides to go this route, careful thought needs to be given to what would happen to these embryos in the event of divorce. After the relationship ends, either parent may object to embryos being implanted in a surrogate if they no longer want to have children with the former partner. 

A few years ago, another celebrity couple — Sofia Vergara and her now ex-fiance Nick Loeb — entered a legal battle over their frozen embryos. After their relationship ended, Loeb wanted to have children via a surrogate, using the embryos that contained his sperm. Varga objected, stating that since she did not want children, the embryos should not be used. After a number of hearings, the courts agreed that unless both parties to the embryo were in agreement, the embryo should not be used.

Still, some fertility clinics have patients sign contracts prior to the creation of the embryos that may create a gray legal area. In the New Jersey Supreme Court case of JB v. MB, a couple, pursuing IVF (in vitro fertilization) due to infertility ended up divorcing and a dispute arose over the fate of their frozen embryos. The contract the couple had signed with the fertility clinic prior to starting treatments stated that all control and ownership of any embryos would be given over to the IVF program in the event that there was a divorce, or unless the divorce judge orders who would take possession of the embryos.

When one of the former spouses wanted to use the embryos post-divorce, over objections from both the other spouse and IVF clinic, the dispute ended up in court. Ultimately, the New Jersey Supreme Court made two key rulings: 1. IVF agreements like these do, violate public policy and will generally not found to be enforceable; and 2. In cases where former spouses/partners dispute use of frozen embryos, the party choosing not to become a biological parent generally should prevail.  

Still, there can be a legal gray area when it comes to assisted reproductive technology and parental rights. As part of the process, couples really should come to their own agreement about what they want to happen in case they divorce.

Learn More: 

Divorce Issues: What Happens to Frozen Embryos?

How to Hire a Gestational Surrogate: A Step-by-Step Guide 

Do you have questions about surrogacy and other assisted reproductive technology (ART) legal issues? We can help. Get all your questions answered by calling us today to schedule an initial confidential consultation with one of our specialist attorneys. Call 888-888-0919, or please click the button below.

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