“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.”
— Fred Silberberg
Attorney for Sophia Vergara
“While this might seem like an extremely bizarre kind of case, a Louisiana judge could very well say, ‘I’m going to protect the lives of these two embryos.’”
— Lisa Bloom
NBC Legal Analyst
There are documented cases of people being sued by their kids, by their pets, by the estates of deceased relatives and even by property that they own. An eye-catching headline this week tells of a newly filed case in which actress Sophia Vergara is being sued by frozen pre-embryos that were created by the fertilization of her eggs with the sperm of her former fiancée, businessman Nick Loeb.
Vergara and Loeb were dating and were engaged to be married in 2013 when they had two of Vergara’s eggs fertilized. The actress was then 41 years old and Loeb has told news outlets that they were preparing to have children later in their marriage. Their relationship ended before a wedding ever took place, but the fertilized eggs remain frozen. And that’s where the legal situation gets very complicated.
State laws relating to fertilized eggs vary greatly. Most states make it clear that if a woman has an egg removed and that egg remains frozen awaiting fertilization, then the decision on what to do with the frozen egg rests entirely with the woman from whom the egg was removed. However, if the egg is fertilized with sperm from a known donor, then decisions about the pre-embryo become much more legally complicated.
IVF clinics counsel patients about the potential legal consequences and complications involving situations in which couples freeze fertilized eggs but then either separate or one or both halves of the couple die. As many IVF patients do, Vergara and Loeb entered into an agreement on their rights relative to the fertilized eggs, and that agreement is now at the center of the their dispute.
But how did the situation get to a point where the eggs are actually suing Vergara? To begin with, Loeb claims that the agreement is unclear on how to handle the current facts. Both sides have stated that the agreement provides that the eggs cannot be implanted without their mutual consent, but Loeb claims that there are no provisions allowing for one party to unilaterally destroy them.
Loeb filed a lawsuit last year to prevent Vergara from destroying the eggs and Vergara’s attorneys have filed a motion to dismiss that lawsuit. Now, a trust has been established in Louisiana on behalf of the eggs and the new lawsuit has been filed in that state against Vergara. The choice of the Pelican State is not accidental- it has laws that are favorable to the rights of embryos and pre-embryos to bring these kinds of lawsuits.
This particular lawsuit will likely take many more twists and turns, some jurisdictional, some contractual and some that may set new precedent as the rights of fertilized eggs are explored in the ongoing context of the broader debate on abortion and the point at which life begins.
The case should serve to caution those who are using the technological advances of IVF to make sure that they are fully exploring and protecting their legal rights by consulting not only their physicians, but also their legal counsel.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County of Common Pleas.