Embryos Gone Wild, Start Dropping Briefs, In Lawsuits Against Celebrities
Sofia Vergara is being sued by her own embryos, who are demanding that they be brought to life.
Sofia Vergara (Photo by Ian Gavan/Getty Images)
Some days I don’t envy celebrities. OK. Pretty much every day. But this week I am especially happy not to be in Sofia Vergara’s shoes (although I’m sure she does wear fun shoes). As of December 6, 2016, Sofia Vergara is being sued by her own embryos in the state of Louisiana. The embryos, named “Emma” and “Isabella” in the complaint (which is odd, because the second embryo doesn’t look like an “Isabella” at all, more of a “24168B”), are demanding that they be brought to life and be able to enjoy a trust fund set up for their benefit. Of course, the person to establish the trust fund is Sofia Vergara’s ex-fiancé and co-genetic contributor to the embryos, Nick Loeb.
Happier Days. Vergara and Loeb dated between 2010 and 2013 and went through in vitro fertilization together in order to have a child. After failing to conceive, the two discontinued trying and parted ways. They have two remaining embryos cryopreserved. Before creating the embryos, both Vergara and Loeb signed a contract agreeing that neither of them could use the embryos without the other’s consent. And further agreeing that upon one or both of their deaths, the embryos would be destroyed.
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Things Get Ugly. And Then More Ugly. Despite the agreement that Loeb not be able to use the embryos without Vergara’s consent (or vice versa), Loeb has been lobbying, and suing, for the right to use them despite Vergara’s protests. Loeb brought suit in California, where the embryos were created and are currently cryopreserved. The case has slowly worked its way through the system, but took an interesting turn recently when Vergara’s attorneys demanded to know the identity of two women who aborted pregnancies that were conceived with Loeb. Loeb claims that his need to control the embryos and bring them to life are based on his pro-life beliefs, and not a desire for publicity, as claimed by Vergara’s attorneys. Not willing to reveal the names of the past girlfriends, and expecting an unfavorable judgment by the court, Loeb took the dramatic step of filing to dismiss the California case on Tuesday night.
If You Can’t Win in California, Try Louisiana? Louisiana makes sense as an ideal venue to try to win a case to use embryos, thanks to being the only state in the United States to declare embryos “juridical persons” and to give embryos the right to go to court. But until now, we’ve never seen an embryo try to sue. Loeb’s attorneys claim to have strong jurisdictional arguments, but it seems unlikely that the court will agree. While millionaire Loeb has some ties to Louisiana (he went to college there and apparently serves as a reserve police officer there), neither Vergara, nor Loeb, nor the embryos reside in the state. Not to mention that a failure of jurisdiction is an easy way for the court to punt on such a deeply controversial right-to-life issue.
It’s Probably Unconstitutional. But even if Louisiana did agree that the case was in a proper jurisdiction, a win for Loeb (aka the embryos) would be shocking and unprecedented. For the most part, every case to date delving into embryo disposition has determined embryos to be property, “quasi-property,” or generally some type of property with special rights. Moreover, the courts have continued to rule in favor of the right not to reproduce, citing the right as constitutionally protected. As we saw a couple weeks ago in a Missouri case, even in a state with an “embryos equal life” statute, the court determined that it would be unconstitutional to apply that statute to allow one genetic contributor to conceive a child against the wishes of the other genetic contributor (because it would violate a constitutionally protected right not to reproduce).
For these reasons, it’s unlikely that this suit will get much traction. But the mere existence of the case is certainly unsettling to all those going through IVF to build their family. Doctors rarely create precisely the amount of embryos that a couple wants to conceive. So the threat of frozen embryos getting lawyers and demanding to be brought life is ominous. (You can imagine parents saying that they only wanted one baby, not 22!) And with estimates of close to a million embryos currently cryopreserved in the United States alone, that’s a lot of potential plaintiffs! Assisted Reproductive Technology attorneys will breathe a sigh of relief when Loeb’s case is dismissed.
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Earlier: I Want To Put A Baby In You: Bad News For Sofia Vergara?
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at [email protected].
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