Who Owns The Embryos Sofia Vergara and Her Ex Created?

The Modern Family actress’s ex-partner wants to prevent her from destroying two female embryos they created. What are his chances?

Mario Anzuoni/Reuters

Sofia Vergara’s former fiancé, Nick Loeb, is fighting to preserve the life of their unborn children.

Loeb, under the pseudonym “John Doe,” filed a lawsuit to prevent the Modern Family actress (“Jane Doe”) from destroying two female embryos the pair had previously conceived through IVF and preserved during their engagement.

“Nick has always wanted to be a father and will do whatever it takes to save these two remaining female embryos,” a source close to the matter told InTouch. “Nick is very emotionally invested in these female embryos because he’s pro-life and believes life begins at conception.”

According to the documents, the couple had decided—after much heated debate that allegedly involved Vergara “vigorously berating him in the offices”—that the embryos would be thawed out in the event of either of their deaths.

However, the documents state that Loeb did not agree with the decision because of his “pro-life” stance that “life begins at conception,” according to the InTouch source.

Since the clinic did not provide forms in the event of a separation (only death), the plan of action for the unused embryos has been left unresolved.

For this, Loeb is also suing the Art Reproductive Center, who refused to comment on the matter. Neither Vergara’s lawyer, Fred Silberberg, who also deals with family-creation suits, or a representative for Loeb could be reached for comment.

“These documents are usually pretty cookie cutter documents that fertility clinics use,” Barbara Collura, the president and CEO of RESOLVE: The National Infertility Association, a nonprofit advocacy organization that provides support, information, awareness and advocacy around infertility, told The Daily Beast.

“They generally cover all scenarios—death, divorce, separation, you name it. I’m a little surprised that the clinic documents they allegedly signed didn’t include that.”

“People need to be aware of that when going into this process,” she added. “Sadly, one of the partners can die while those embryos are stored, but certainly divorce or separation or just a change of heart on what family-building plans are, can also happen.”

This is not the first time separated couples have duked it out in court over unborn children.

In 1989, Tennessee natives Mary Sue and Junior Davis became embroiled in a dispute over seven frozen embryos during their divorce.

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Junior wanted them destroyed while Mary Sue, who was infertile, wanted to keep them preserved for a future pregnancy.

Ultimately the court ruled in favor of Junior, who claimed to have destroyed the embryos.

The case set a precedent for almost all future rulings. Any prior agreements between the could-be-parents are typically upheld.

If there is no agreement, the court weighs the interest of both parties, which has typically favored for the individual seeking to avoid reproducing.

But sometimes the parties do come to an agreement.

Stephanie Caballero, a lawyer who specializes in all legal aspects of third-party reproduction, told The Daily Beast: “I’ve had two cases where the couple writes a contract and the male donates their portion of the embryo to the woman as a sperm donor, because sperm donors aren’t parents. So, for Sofia’s case, while I don’t think she would, she could donate her embryos.”

Such was the case for a Illinois couple, whose legal disputes made headlines last year.

In 2009, shortly after Karla Dunston and Jacob Szafranski began dating Dunston was diagnosed with lymphoma. The treatment options she was presented with had a very high risk of leaving her infertile.

So, she asked her boyfriend to provide his sperm in the hope that one day she’d be able to conceive a biological child. He agreed.

Now, almost six years later, Dunston is fighting for her last hope for a genetic offspring, while Szafranski faces being forced into fatherhood, which he thinks will affect his ability to find a partner.

“Karla’s desire to have a biological child in the face of the impossibility of having one without using the embryos outweighs Jacob’s privacy concerns and his speculative concern that he might not find love with a woman because he unhesitatingly agreed to help give Karla her last opportunity to fulfill her wish to have a biological child," Judge Sophia H. Hall said in a ruling last year that awarded custody of the embryos to Dunston.

Szafranski has since appealed the decision.

“There’s a very strong public policy throughout the country that you do not force someone to be a parent against their will,” Caballero said. “And the thing with Nick, unlike the Illinois case, is he can probably procreate.”

In both cases the forms Dunston and Szafranski signed were standard of the majority of IVF clinics, stating how to handle any unused eggs in the case of death or separation, including the clause that one party could not use the embryos without the consent of the other.

But what about Loeb’s pro-life views?

“Embryos are not looked upon as people,” Collura said. “Individuals—because of their own beliefs—can certainly do that, but state government, the federal government and the court do not look upon frozen embryos as people. There is special consideration given because they have the potential for life, but in the legal sense—as crass as it is to say—they are viewed as property.”

Still, there are alternatives the couple could use instead of melting away the potential baby, according to Caballero.

They could anonymously donate them to a completely separate couple and give up all parental rights. Or Vergara could have them transferred to her at a non-fertile time, leaving a “less than one percent chance that she would get pregnant,” Caballero explained. “That would satisfy Nick’s belief in life.”

So will Loeb’s legal bid be successful?

“I think the courts have made it clear that you cannot force anyone to be a parent,” Collura said.

While other lawyers Caballero has spoken with have been hesitant to speculate, she believes “anything is possible” when the court finally rules in the case between Loeb and Vergara, but she “can’t ever see a court forcing Sophia to be a parent in this situation.”

Collura agrees: “I think its going to be really tough for him to prove that he has the right to do whatever he wants with them.”

And while IVF couples going to court is not all that common, Collura says that the real message behind this very public case is for people to “really be aware about all of these things when they enter into IVF,” and other means of building their future families.