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What Happens to Frozen Embryos When One Partner No Longer Wants to Use Them?

The Real Housewives of Orange County's Emily Simpson is having a tough conversation with her husband, Shane, about her frozen embryos. 

The Real Housewives of Orange County mom Emily Simpson and her husband, Shane, had an intense therapy session about the decision to have more kids — she wants them, he doesn’t.

Shane was straight with Emily’s Beverly Hills OBGYN Dr. Najmabadi, saying, “Yeah, I’m not interested in having more children,” when she asked him if he’s ready to close that chapter of his life. Emily had previously gone through five miscarriages and ended up using her sister Sara as a surrogate for her daughter Annabelle. But the couple still has frozen embryos, and Emily would like to use them to try for another baby. Neither will budge on their decision. So what happens to those frozen embryos when the couple disagrees on using them?

It's not just a question Emily and Shane are dealing with. Modern Family's Sofia Vergara is facing her own embryo issues. Her ex-fiance, Nick Loeb, is battling to keep embryos the two froze together in 2013 — he is pro-life and insists that's why he's against destroying them. He has even named them Emma and Isabella. Sofia says his intention is to destroy her marriage to Joe Manganiello. Nick, meanwhile, has taken her to court in California, then moved the case to Louisiana, a pro-life state, where he established a trust for the embryos. Sofia won short-term when she blocked Nick from using the embryos (he wanted to implant them in a surrogate and raise them himself), but the legal battle over who owns them is still ongoing. What a nightmare.

In 2015, Silicon Valley investor Stephen Findley’s former wife, Mimi Lee, wanted to use embryos the two froze after she was diagnosed with breast cancer and became infertile as a result. When their marriage fell apart, he didn’t want to have children with her. A San Francisco Superior Court judge sided with him and ruled the embryos be destroyed. Mimi claimed it was her only chance to have children.

At the root of it, says The Washington Post, is the question: “If women have the right to not be forced to be a gestational parent, do men — or women — have the right not to be forced to be a genetic parent?”

So what happens to these embryos where there's a fight over them? Disputes over who owns embryos (because it is an egg fertilized with sperm, it takes two parties to make, and without signing off consent as a donor, they belong to both parties) have landed people in court ever since IVF became popular. For now, different judges in different states have decided entirely different outcomes on the rightful owner, reports the Washington Post. “Rulings sometimes have awarded the frozen contents to the parent who wanted to use them, while other times determining that they could be discarded,” it said.

It would take the U.S. Supreme Court to apply a ruling nationwide to have a clear consensus.

Not to say that Emily and Shane will end up in a heated battle over their embryos as the two are still married, but it is a debate that has been getting attention over the past decade and raises the question of who owns these embryos truly.

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