They’re the modern family that never came to be.
Before their split in 2014, Sofia Vergara and Nick Loeb decided to start a family with the help of in vitro fertilization (IVF). They froze two pre-embryos (eggs that have been harvested outside the body and fertilized with sperm) with the intent of implanting them in a gestational surrogate. But before they were able to find that surrogate, they broke up. Now, Loeb wants to use those frozen embryos and has launched a lawsuit against Vergara on behalf of them.
He has filed a suit couched in pro-life language, calling the embryos his “children” (and even allegedly naming them Isabella and Emma), stating that they’re being deprived of their inheritance by not being born.
“This is a strange case and certainly the first time I’ve ever heard of anything like it,” says Sara Cohen, a Toronto-based lawyer at Fertility Law Canada.
Besides the oddness of being sued by embryos, Loeb’s case to gain access to the embryos is riddled with flaws, according to experts. (He already tried unsuccessfully to get them in 2015.)
For one thing, the embryos are being stored in Los Angeles and he filed his lawsuit in Louisiana.
“The filing in Louisiana may be strategic, because other elements of Louisiana tilt towards the protection of frozen embryos,” I. Glenn Cohen, a Harvard Law School professor and expert in reproductive technologies, surmised in an article on Refinery29.
To lend weight to his case, Loeb has set up a trust for the embryos in Louisiana that is meant to provide for their maintenance, including education and healthcare.
“Louisiana law says embryos have rights as a person,” Sara Cohen says. “And they’re using this weird, nonsensical, pro-life, anti-reproductive freedom argument that these embryos are being denied their inheritance by not being transferred to a surrogate.”
Another gaping hole in the case allegedly comes from a pre-established agreement from both parties before the embryos were frozen. According to I. Glenn Cohen, it’s customary for couples working with most IVF clinics in the U.S. to state their “dispositional preference” before the embryos can be frozen. That means they must decide what will come of the embryos if the couple splits, or one or both parties dies before they’re used.
In the case of Vergara and Loeb, they agreed that whatever decisions were to be made about the embryos hinged on the permission of both parties, according to Us Weekly. And since Vergara is adamant about not using the embryos, Loeb is therefore blocked from gaining access to them.
While Sara Cohen says that nothing of this sort has ever come up in Canada, the Refinery29 article says that similar cases have been argued in 12 states, most recently in Missouri.
According to I. Glenn Cohen, one of three things could determine the outcome:
“First, the court could require contemporaneous mutual consent now, no matter what the parties agreed to earlier; second, the court could treat the disposition agreement as a contract to be enforced; third, the court could balance the interests of the party seeking to implant against those of the opposing party.”
He says that the majority of the cases have come out against the person seeking to use the embryos, with the exception of cases where it was proven that the women seeking the embryos could not conceive without them.
While Sara Cohen says that it’s not a bad idea for couples to put a legal agreement in place when freezing embryos, people generally don’t.
“In Canada, we have the Assisted Human Reproduction Act that covers you,” she says. “It stipulates that a doctor or clinic would not be allowed to make use of an embryo without the consent of both parties. Even if you wanted to put it in your prenuptial agreement, the act could override it.”
Although Vergara’s lawyer has been vocal about his belief that Loeb’s acts are an attempt to stay in the media, the outcome of this case could have a weighty impact on family law in the U.S.
Vergara is currently married to actor Joe Manganiello.