The battle between Sofia Vergara and her ex-fiancé, Nick Loeb, over their frozen embryos is (somehow) still going on — and on Tuesday, it took a strange turn when a right-to-live lawsuit was filed on behalf of the fertilized eggs against their mother. In addition to acting as the plaintiffs in the new version of the lawsuit, the fertilized eggs have names: “Emma” and “Isabella.” This detail no doubt aims to encourage people to think of them more as living human beings. The embryos’ “trustee” is listed as a plaintiff as well.
As a quick refresher, Vergara and Loeb during happier times in 2013 used IVF to create a handful of embryos. On two separate occasions the couple had a fertilized embryo placed in a surrogate in an attempt to have a child, but neither attempt led to a live birth. At that point, Vergara and Loeb apparently didn’t see eye-to-eye on what to do with the remaining two embryos, both of which are female, and the stress of this situation contributed to their breakup the following year (at least according to him).
Since then, Loeb, a staunch Trump supporter, has been trying to win the right to use the embryos to have a child and has been very public with his cause, even writing an op-ed piece for the New York Times in which he revealed, “As we began to discuss other potential surrogates, it became clear once more that parenthood was much less urgent for her than it was for me.” He continued, “We had been together for over four years. As I was coming on 40, I gave her an ultimatum. When she refused, we split up.” He later went on to argue that many people don’t really know the difference between an embryo and an egg and fail to realize that the embryo was “half” his — “half my DNA and half her DNA.” He argued, “It’s actually a human being.” Hence, they have names.
Loeb had originally filed in California, but reportedly dropped that lawsuit on Tuesday after a judge ruled in favor of 44-year-old Vergara in her request to force her ex to identify two previous lovers who had undergone abortions after he impregnated them. In other words, this is getting pretty messy.
The new lawsuit contends that by not being born, “Emma” and “Isabella” have been deprived of an inheritance from a trust that has been created for them in Louisiana. Loeb mainly splits his time between New York and Florida, but has ties to Louisiana because he went to Tulane University and reportedly still serves as a reserve police officer for the state. So, why did he file in a place that isn’t his primary home? It’s pretty simple: Louisiana is a traditionally antiabortion state that offers special legal protections for frozen embryos. His odds of success could be better there … maybe.
“This sounds like a frivolous lawsuit and a desperate attempt to grab more media attention,” asserts Manhattan family law attorney Martha Stine, who is not involved in the case but advises couples in similar situations. “Worried after his most recent defeat that the handwriting is on the wall and that he will lose in California when his case goes to trial next month, he discontinues his California lawsuit, researches the law and finds that Louisiana has a good frozen-embryo statute. He then starts a new lawsuit in Louisiana claiming there is a Louisiana trust for the potential children. But why didn’t he start his case in Louisiana in the first place? The embryos aren‘t located in Louisiana; they’re in a clinic in California. This is pure forum shopping, and the courts don’t like that. Louisiana would not have jurisdiction over frozen embryos in another state. I predict the complaint will be dismissed on its face.”
The request in the court papers is that the frozen embryos be given to Loeb so that they can live and thus receive the trust established for them. Funds in the trust have been earmarked for specific things including healthcare and education. Stine adds, “The timing of the creation of the Louisiana trust would certainly be a factor the court would consider in deciding the merits of this lawsuit. Since the embryos are located in another state, the Louisiana judge would want to know the parties’ connection to Louisiana and the details concerning the trust.” (Loeb’s having attended college there may not cut it.)
Loeb’s filing also argues that the contract he and Vergara had originally signed at the ART Reproductive Center in Beverly Hills on the basis that it violated both California code and Louisiana law. Though the contract said that neither party could use the embryos without consent of the other (i.e., Vergara’s refusing to consent to let her ex have her baby), it didn’t specify what would happen to the fertilized eggs if the couple were to part ways.
This new filing further insists that while they were still together, the Modern Family star — who, like Loeb, is Catholic — believed the embryos should never be destroyed, but that in the aftermath of their split, she has broken their oral agreement.
Loeb is now also seeking full custody of the embryos (again, via the plaintiffs, who are the embryos and their trustee) so they can be implanted in a surrogate. Oh, and he wants Vergara to pay for any fees he incurred while “Emma” and “Isabella” were frozen and is seeking to have her parental rights terminated.
Vergara’s lawyers issued a lengthy statement to People late Wednesday in response to the lawsuit:
“Next week the judge presiding over the case was to rule on Ms. Vergara’s request for sanctions against Mr. Loeb for refusing to comply with a court order, and on her motion for summary judgment-seeking dismissal of the case he filed against her, attempting to get control of pre-embryos that he created with Vergara. That genetic material was created pursuant to a written agreement that required both parties written consent to attempt to create a pregnancy. Apparently Mr. Loeb and his counsel, knowing that he was about to lose decided to attempt to save face by taking their proverbial ball and going home. Reports are out that Mr. Loeb has caused a lawsuit to be filed on behalf of the pre-embryos in Louisiana, essentially trying to get the same relief that he was trying to get through his failed legal attempt in California. If these reports are true, this latest maneuver is nothing more than another attempt on the part of Loeb to keep himself in the public eye by keeping himself linked to Ms. Vergara. The media reports contend that Mr. Loeb has caused a lawsuit to be initiated claiming that the pre-embryos — which are not embryos, but rather frozen fertilized ova — have been given names by him and have a right to live. Loeb apparently thinks that he will garner sympathy from the public and the courts through this latest maneuver, one that we believe will also result in failure. It is unfortunate that Loeb feels the need to keep himself linked to Vergara, who is happily married, by taking up more of our overburdened courts resources, preventing judges from focusing on real legal problems. If it is really a family that Loeb wants, he should hire a surrogate and an egg donor and create one without dragging Vergara through another unnecessary legal battle.”
While neither of the potential parents have publicly commented on this latest legal move, Vergara, who recently celebrated her first anniversary with husband Joe Manganiello, seems to be keeping herself busy with work.