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Frozen Embryo Forum Shopping

January 18, 2017

FROZEN EMBRYO FORUM SHOPPING: HOW CONFLICTS OF LAW INHIBIT THE LAWSUIT AGAINST SOFIA VERGARA

By: Joseph T. Janochoski, Volume 101 Staff Member

In December 2016, actress Sofía Vergara[1] was named as the sole defendant in a Louisiana lawsuit filed by her own frozen embryos.[2] The embryos “Emma” and “Isabella” sought to “remedy the prevention of their expected inheritance . . . [and] to be transferred to a uterus so they may . . . be born . . . .”[3] The case exists due to unique Louisiana statutes which grant frozen embryos juridical rights to sue.[4] In addition to the standing problems that likely exist,[5] the case presents a clear conflicts of law problem that merits discussion.[6] Both embryos “reside” in Beverly Hills, CA, and the defendant, Sofía Vergara, lives in Los Angeles County, CA.[7] Consequently, the suit implicates the laws of both California and Louisiana, which differ as to whether frozen embryos have the capacity to sue. This post will (1) summarize Louisiana’s conflicts of law method (known as “comparative impairment”), and (2) apply the method to the facts of the case. The post concludes by arguing that under Louisiana conflicts of law analysis, California law should be applied to bar the case from proceeding any further.

I. LOUISIANA COMPARATIVE IMPAIRMENT AND THE ISSUE OF CAPACITY TO SUE

Article 3515 of the Louisiana Civil Code sets forth a “comparative impairment” conflicts of law method that instructs courts that “an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.”[8] To determine said state, Louisiana courts evaluate “the strength and pertinence of the relevant policies of all involved states” through the lens of “the relationship of each state to the parties and the dispute [and] the policies and needs of the interstate . . . systems.”[9]

Article 3515 lays out a two-step process for conducting a “comparative impairment” analysis. First, a court must identify “the various state policies that might be implicated in the conflict.”[10] This includes policies “embodied in the particular rules of law” as well as “more general policies” of each involved state.[11] The second step is to evaluate the “‘strength and pertinence’ of these policies in light of ‘the relationship of each state to the parties and the dispute’” as well as the “policies and needs of the interstate and international systems.”[12] The wisdom of a state policy is not important.[13] Even if a legislative policy is “strongly espoused by the enacting state for intra-state cases,” it “may in fact be attenuated in a particular multistate case that has only minimal contacts with that state.”[14] Once evaluated, the court determines which state’s policies would be the most impaired if they were not applied and applies that state’s law.[15]

In the Vergara case, because a central issue is the capacity of a frozen embryo to sue, Article 3519 of the Louisiana Civil Code (which applies to whether an individual has the capacity to sue)[16] refines the analysis. Under Article 3519, Louisiana courts must evaluate the strength and pertinence of relevant policies of any involved states in light of “the relationship of each state, at any pertinent time, to the dispute, the parties, and the person whose status is at issue” and “the policies of . . . protecting children, minors, and others in need of protection, and of preserving family values and stability.”[17] Consequently, the policy underlying California and Louisiana law must be analyzed through the lens of the both states relationship to the dispute, the parties, the persons whose status is at issue, and the policies of protecting children and family values.

II. APPLYING ARTICLE 3519 TO THE VERGARA CASE

The application of Article 3519 to the Vergara case requires a two-step procedure that (1) identifies the laws and policies of the relevant states, and (2) analyzes the strength and pertinence of those policies to determine which state’s policies would be more seriously impaired.

A. Relevant Law and Policies of California and Louisiana

The first step in applying Louisiana’s “comparative impairment” approach requires identification of the laws and policies of the relevant states. Louisiana explicitly grants frozen in vitro embryos juridical status and affords them the right to sue.[18] While no policy explanation or case law provides background on the purposes of the statutory scheme, the language of the statutory scheme itself implies policy considerations pertaining to the embryos. Louisiana considers “an in vitro fertilized human ovum” to be a “human embryo” that will “develop in utero into an unborn child.”[19] The state has a policy of encouraging the use of human embryos solely for procreation by expressly prohibiting the use of in vitro human embryos for “research purposes or any other purposes” as well as prohibiting the “sale of human ovum[s], fertilized human ovum[s], or human embryo[s].”[20] In fact, in situations where the biological parents of the embryos fail to express their identity, Louisiana law makes the physician that facilitated the fertilization the temporary guardian of the embryos until adoptive implantation can occur.[21]

California, on the other hand, does not explicitly permit human embryos to sue. Section 43.1 of the California Civil Code does declare that “[a] child conceived, but not yet born” is “an existing person, so far as necessary for the child’s interests in the event of the child’s subsequent birth.”[22] However, that statute has never been interpreted to encompass frozen embryos, nor does it grant them an explicit right to sue. Even if it had, Section 372(a)(1) of the California Code of Civil Procedure would still require any action vindicating the rights of unborn children to be brought by a guardian or conservator.[23] Furthermore, California’s clearest statement of policy towards human embryos can be found in Section 125315 of the California Health & Safety Code, which permits patients undergoing fertility treatments to allow frozen human embryos to be thawed with no further action.[24] Thus, California policy appears more concerned with the rights of the fertility treatment patients than with the alleged personhood of frozen embryos.

B. “Strength and Pertinence” of the Relevant Policies

As noted above, the “strength and pertinence” of the policies described in the previous section are to be measured by considering their relative weight under the principles of Articles 3515 and 3519. Louisiana policy on maintaining and promoting the potential human life contained within a frozen embryo merits some deference here. Emma and Isabella assert claims as embryos seeking the right to be born and inherit from their biological mother.[25] Louisiana’s law and policy desires to protect embryos and hasten their placement in utero for the purposes of achieving a live birth.[26] Arguably, not applying Louisiana law impairs the overall purpose of the state’s statutory scheme in promoting the life and health of a human embryo. With regards to the contacts that Louisiana has with Emma and Isabella, Emma and Isabella’s biological mother and father, Vergara and Loeb, ended their relationship in Louisiana in large part due to disagreements over the disposition of Emma and Isabella’s embryonic form.[27] Such contacts suggest Louisiana has an interest in applying its own policy.

Still, Louisiana’s connection to the facts of the case suggests its law is not the most impaired if not applied. Louisiana’s contacts with the “person[s] whose status is at issue”[28] are extremely weak. Emma and Isabella were conceived in California via in vitro fertilization in the fall of 2013 and have remained cryogenically preserved in that state; they have never been in Louisiana, nor do they have other contacts with the forum.[29] Consequently, Louisiana lacks any real connection to the “person[s] whose status is at issue,” which seriously undermines the claim that Louisiana policy is impaired in an interstate setting.

California, however, has a strong connection to the parties and the persons whose status is at issue. Emma and Isabella were conceived in California and reside in an ART facility in Beverly Hills, California; they have never been transferred anywhere else.[30] Furthermore, all contracts pertaining to Emma and Isabella regarding their cryogenic storage or surrogacy were created in California under California contract law and the state’s fertility treatment statutory scheme.[31] These contacts, paired with California policy permitting “thaw without further action” embryo disposition, suggest that not applying California law would seriously impair the state’s policies protecting the rights of fertility patients to decide what to do with their own embryos. Furthermore, the forum-shopping nature of the case weighs in favor of California law. Louisiana’s own conflicts statutes indicate that its courts should recognize the “universally acknowledged” policy of “discouraging forum shopping . . . .”[32] This case is a classic example of forum-shopping: but for Louisiana’s unique juridical law, the case would have almost no chance of success.[33]

III. CONCLUSION

Ultimately, Louisiana’s “comparative impairment” conflicts method indicates California policy would be the most seriously impaired if not applied to the Vergara case. The human embryos at issue were both conceived in and have always resided in California, and the defendant and biological mother is a California resident. All contracts pertaining to Emma and Isabella were formed in and under California law. California’s connection to the case is quite strong, and not applying California law would likely inhibit California policy designed to protect fertility treatment patient’s decision-making. While the debate surrounding the legal status of human embryos is certainly not settled,[34] forum-shopping to circumvent the issue does not contribute to that debate. The Louisiana court hearing the Vergara case should, under California law, bar Emma and Isabella’s lawsuit from continuing any further.

  1. Sofía Vergara Biography, Bio. (Dec. 30, 2016), www.biography.com/people/sofia-vergara-20880633 (discussing Sofía Vergara’s background). ↑
  2. Complaint at 2, Human Embryo #4 HB-A v. Vergara, No. 767-189 (La. Dist. Ct. Dec. 7, 2016). ↑
  3. Id. at 2. Each embryo is described as a “female human being[s] at the embryonic stage of life . . . cryopreserved” in Beverly Hills, CA. Id. at 2–3. This post refers to each embryo by their assigned names. ↑
  4. La. Stat. Ann. § 9:124 (2016). A third-party attorney noted that the suit was “not even conceivable . . . in another state.” David Bixenspan, Expert: Embryos’ Lawsuit Against Sofia Vergara Has “Almost 0%” Chance, Law Newz (Dec. 7, 2016), http://lawnewz.com/celebrity/expert-embryos-lawsuit-against-sofia-vergara-has-almost-0-chance. ↑
  5. Emma and Isabella may not have suffered a legally cognizable injury (i.e. their right to be born and acquire an inheritance) sufficient to confer standing. As part of the doctrine of justiciability, standing requires “[a] plaintiff [to] allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). ↑
  6. “Conflict of Law” is defined as “[a] difference between the laws of different states or countries in a case in which a transaction or occurrence central to the case has a connection to two or more jurisdictions.” Conflict of Laws, Black’s Law Dictionary (10th ed. 2014). Here, the capacity to sue is at issue, and the laws of California and Louisiana differ with regards to the capacity of a frozen embryo. ↑
  7. Complaint, supra note 2, at 3. ↑
  8. La. Civ. Code Ann. art. 3515 (2016). ↑
  9. Id. ↑
  10. Id. at cmt. (c) ↑
  11. Id. ↑
  12. Id. ↑
  13. Id. ↑
  14. Id. ↑
  15. Art. 3515. ↑
  16. La. Civ. Code Ann. art. 3519 (2016). ↑
  17. Id. (emphasis added). ↑
  18. La. Stat. Ann. §§ 9:123–124 (2016). ↑
  19. La. Stat. Ann. § 9:121 (2016). ↑
  20. La. Stat. Ann. § 9:122 (2016). ↑
  21. La. Stat. Ann. § 9:126 (2016). ↑
  22. Cal. Civ. Code § 43.1 (West 2016). ↑
  23. Cal. Civ. Proc. Code § 372(a)(1). ↑
  24. Cal. Health & Safety Code § 125315. ↑
  25. Complaint, supra note 2, at 2. ↑
  26. La. Stat. Ann. § 9:126 (2016). ↑
  27. Complaint, supra note 2, at 3. ↑
  28. La. Civ. Code Ann. art. 3519 (2016). ↑
  29. See Complaint, supra note 2, at 2–3, 13 (noting the location of embryo storage, and the date of fertilization). ↑
  30. Id. ↑
  31. Id. at 6, 9–10; see also Cal. Health & Safety Code §§ 125300–125315. ↑
  32. La. Civ. Code Ann. art. 3515 cmt. (c) (2016). ↑
  33. See Bixenspan, supra note 4. ↑
  34. Compare Tamara L. Davis, Comment, Protecting the Cryopreserved Embryo, 57 Tenn. L. Rev. 507 (1990) (arguing for further protections of frozen embryos), with Paul C. Redman II & Lauren Fielder Redman, Seeking a Better Solution for the Disposition of Frozen Embryos: Is Embryo Adoption the Answer?, 35 Tulsa L.J. 583 (2000) (arguing for a balance of fertility patient autonomy and embryo protection). ↑
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