Family Law

How Is Sofia Vergara Still In A Legal Fight Over Her Embryos?

Nick Loeb has been filing lawsuits against Vergara for years now.

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Sofia Vergara. (Photo by Ian Gavan/Getty Images)

The actress Sofia Vergara played the role of the strong and confident Gloria Delgado-Pritchett on the hit TV show Modern Family. But she’s also strong and confident in real life, enduring years of litigation involving her ex-fiancé with whom she formed embryos. Vergara’s is actually a cautionary tale to be very, very careful of whom you go through IVF with. It’s been seven years since her break up with Nick Loeb, the [checks the internet] … Crunch Condiment Company founder. Happily, she moved on from Loeb, and married actor Joe Manganiello in 2015. But somehow, Vergara is still fighting Loeb’s attempts to conceive children with their two cryopreserved embryos.

The Form Directive. Back in November 2013, the couple was being treated at a fertility clinic in California, and signed a classic IVF consent form, entitled “Directive for Partners Regarding the Storage and Disposition of Cryopreserved Material Which May Include Embryos.” This consent agreement has become known as the “Form Directive.” The Form Directive included a provision that “both parties must agree to the disposition” of an embryo; otherwise, the failure to make a mutual decision would be abandonment of the embryos to the clinic. Of course, it’s no surprise that Vergara, now happily married to a literal Magic Mike star, is not interested in consenting to her ex conceiving with the embryos.

Loeb has been filing lawsuit after lawsuit against Vergara.

California I. In 2014, Loeb filed an action in Santa Monica to obtain full custody of the embryos and bring them to term (e.g., have them transferred to a surrogate). Loeb claimed that it was necessary for him to breach the Form Directive because of his strong “pro life” beliefs. That assertion was contradicted by evidence obtained during discovery which revealed that Loeb was on board with abortions by two of his prior girlfriends. Rather than reveal the names of such ex-girlfriends or face action-terminating sanctions, Loeb dismissed the case.

Louisiana I. Of course, before dismissing the Santa Monica action, Loeb had already started another lawsuit against Vergara. Loeb unilaterally gave the embryos names (Emma and Isabella), and established a trust for the embryos in Louisiana — a jurisdiction known for recognizing embryos as people, with the right to sue and be sued. Loeb directed the trustee to file a lawsuit on behalf of the embryos against Vergara. That action was dismissed for lack of personal jurisdiction.

Louisiana II. Not one to give up, clearly, Loeb filed again in Louisiana, this time in federal district court. That case was dismissed in a scathing 95-page opinion, including an epic benchslap against Loeb and his attorney. The court stated: “[I] it is clear that Mr. Loeb blatantly engaged in forum shopping when he selected, in concert with a member of the bar, Attorney McQueen, Plaquemines Parish to file the instant lawsuit, with full knowledge that it was the improper venue. Their behavior brings disrepute to and makes a mockery of the Louisiana legal system and the bar and is abhorrent.” There isn’t enough ice in all of Louisiana to chill that burn.

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A Familiar Name. Who is this attorney making a mockery of the Louisiana legal system, and why does the name McQueen sounds so familiar? For loyal readers and embryo disposition jurisprudence enthusiasts, the name Jalesia McQueen is a familiar one. After all, it was in the seminal embryo disposition case of McQueen v Gadberry where a 2016 Missouri Appellate Court ruled against McQueen (in the role of a party, not of attorney). Despite a Missouri state statute that declared embryos to be persons “with protectable rights in life,” McQueen would not be permitted to use the embryos formed with her ex-husband against his wishes or violate his right not to reproduce. (Check out this podcast interview with the attorney representing McQueen’s ex for the ins and outs of the case.)

California II — Was Loeb Under Duress? In addition to the Louisiana case, McQueen represents Loeb in the current California case, which was filed in 2017 by Vergara in Los Angeles County Superior Court, seeking relief from Loeb’s repeated court actions trying to use the embryos against her wishes. In this case, Loeb now argues that he signed the Form Directive under duress! Dragging the case on, he claimed that he had evidence of the duress, but then repeatedly failed to produce it. When he finally did produce the claimed “evidence,” it was his own self-serving testimony that Vergara had berated him the day he signed the Form Directive. He described her as loud, intense, bossy, pushy, and irritable. (He missed “shrill” from the list of time-honored terms to police women’s voices.)

However, a staff member at the clinic who witnessed the signing didn’t support Loeb’s depiction. He described how there wasn’t yelling, but “they were both kind of testy.” Vergara did her homework ahead of time, and had already pre-read the Form Directive, and was comfortable signing the documents as they were. Loeb, on the other hand, “kept wanting to ask questions, even though they had already signed these prior [documents].”

In its January 28, 2021, ruling, the Los Angeles Superior Court rejected Loeb’s arguments that claimed duress. In addition to duress, Loeb argued various reasons that the Form Directive was void. The court instead found that the Form Directive was, in fact, valid and enforceable, and that Loeb could not use the cryopreserved material to create a child without the explicit written consent of Vergara. And for good measure, the court also pointed out that, even if the Form Directive hadn’t been valid, it wouldn’t have gotten Loeb to the outcome he desired. Under California law, it would be impermissible and, in fact, criminal, for the embryos to be used without Vergara’s consent.

While this latest ruling is a good thing for Vergara, it’s hard to imagine that it will be the end. Loeb still has an appeal pending in the federal Louisiana case. And, given the persistence of Loeb and McQueen, the battle may be far from over.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

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