Celebrities

I Want To Put A Baby In You: Bad News For Sofia Vergara?

A recent Supreme Court cert denial isn’t good news for Vergara, but she still has the better of the argument against her ex-fiancé, Nick Loeb, over what should be done with their frozen embryos.

By Ellen Trachman on March 30, 2016 2:14 pm
Sofia Vergara (Photo by Ian Gavan/Getty Images)

Sofia Vergara (Photo by Ian Gavan/Getty Images)

Sofia Vergara is the well-known star of The Smurfs movie (did everyone not see that one?), as well as the TV show Modern Family, and has repeatedly topped the U.S. charts for highest-grossing TV actresses. Vergara and her ex-fiancé Nick Loeb are in a well-publicized battle over embryos the two of them created together—but never implanted—several years ago. The battle includes Loeb publishing a New York Times opinion piece about the fight for “his girls.” Loeb has continued to assert that the embryos created with Vergara deserve a chance at life, regardless of the objection of Vergara. Vergara, on the other hand, has tried to minimize the issue, stating that she feels Loeb is using the embryos for publicity. For her part, Vergara has happily moved on with her life and married the Magic Mike actor, Joe Manganiello.

In another case with facts that may be relevant to the Loeb-Vergara dispute, the U.S. Supreme Court recently declined a petition to hear a case of alleged “forced procreation.” The petition was brought by Jacob Szafranski, who was trying to stop his ex-girlfriend, Dr. Karla Dunston, from procreating with embryos formed jointly from their genetic material. In 2010, Szanfranski agreed to assist Dunston—at the time his girlfriend of only a few months—when she was suddenly diagnosed with cancer and advised to undergo fertility treatment. Szanfranski provided the sperm, and clinic consent forms were signed, followed by a visit to an attorney that yielded a discussion of a co-parenting plan. The plan, however, was never signed. Nevertheless, the Illinois courts ruled that based on an oral contract between the parties, Dunston had the right to use the embryos.

Dunston’s attorney is Abram I. Moore of K&L Gates (one of the largest law firms in the country, although it has seen many partners depart in recent weeks). Moore said his client was “ecstatic” about the Supreme Court’s decision to deny a writ of certiorari in Szafranski — and Moore probably is too. Aside for being happy for Dunston, Moore is likely happy for possible implications for another client of his: Moore also represents Nick Loeb. If Szafranski can be forced to be a parent against his will—and without any document evidencing his prior consent—maybe Loeb can achieve a similar outcome in his dispute.

But while the Supreme Court’s denial isn’t good for Vergara, she still has the better of the argument against Loeb, even after the Szafranski case:

  1. But I Don’t Want To Be A Baby Daddy/Mamma. Although embryo fights are becoming more and more common as couples undergo fertility treatment and later break up, the results tend to be fairly predictable. Most courts will not allow embryos to be used against one of the genetic contributor’s wishes, in effect recognizing a right not to reproduce. The Szafranski case is one of only two publicized cases in which a court has gone the other way. The other case is that of Reber v. Reiss in Pennsylvania. Szafranski and Reber had similar fact patterns, since in both cases a woman had been diagnosed with cancer and specifically underwent fertility treatment (with the use of her partner’s sperm) in order to preserve her ability to have a genetic child in the future. The Vergara case, by contrast, does not have this “last chance” element. Loeb does not claim to have any fertility issues, and does not base his case on his wish for a genetic child generally, but instead on his insistence that these particular embryos should be brought to life.
  2. It’s All About The Contract. Put simply, the Szafranski case, although its holding stands for now, is an outlier. More commonly, courts look to, and uphold, the terms of a contract between the two parties—generally in the form of a clinic consent form—signed before beginning fertility treatment. The California case of Dr. Mimi Lee is instructive. In November 2015, a California Superior Court judge ruled that despite Lee’s unlikely prospect of genetic children—she, like Dr. Dunston, was diagnosed with cancer and went through treatment for fertility preservation—the embryos created with the sperm of her ex-spouse should be destroyed, pursuant to the clinic consent which prescribed destruction upon divorce. The judge’s language, although sympathetic to the intensely difficult issues surrounding embryos, noted that the law required the contract to be followed. The court wrote: “It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.” In the Vergara case, both parties signed an agreement that the embryos could only be used with both parties’ consent.

A motion for summary judgement by Vergara is currently under consideration and may go to trial this summer. Given that the case has survived this long, it’s possible that Moore will be able to keep his client’s arguments alive a little longer. But given the jurisdiction, its precedents, and the general chaotic implications and consequences of any other ruling, Vergara will likely ultimately prevail.

UPDATE (12/8/2016, 11:35 a.m.): The latest dramatic twist: Sofia Vergara is being sued by her own embryos, who are demanding that they be brought to life.

Ellen TrachmanEllen 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. You can reach her at [email protected].