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sofia vergara wins appeal in embroyo battle with ex

a look at how laws regarding pre-embryos differ around north america.

by emma jones

mar 11 2021

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4 minute read

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sofia vergara wins latest appeal from ex over embryos

sofia vergara arrives at the 2020 la art show opening night at los angeles convention center on february 05, 2020 in los angeles, california. morgan lieberman/getty images

sofia vergara has won another legal battle against her ex-fiancé nick loeb over stored embryos (also called pre-embryos) that were a result of the couple pursuing ivf therapy in the early 2010s.

vergara and loeb became engaged in 2012 and decided to pursue a pregnancy via a surrogate. the first attempt was unsuccessful and the couple tried again, resulting in two viable embryos. however, they broke off their engagement before attempting a second surrogacy.

loeb reportedly filed a lawsuit against vergara in august of 2014, according to court documents obtained by intouch weekly, in an attempt to gain custody of the embryos. loeb reportedly wants to bring the embryos to term via a surrogacy, with or without vergara’s support. loeb lost the initial case, and then appealed to louisiana courts.

the fourth circuit court of appeal in louisiana denied nick’s appeal; since the couple lived and pursued ivf therapy in california, the justices involved believed that it wasn’t up to the louisiana court to overturn the previous ruling.

according to court documents, when the couple initiated ivf therapy they were asked to decide what would happen to the embryos if either of them died, including donating the embryos to research, thawing them with no further action, or allowing the living party to decide on bringing the embryos to term. the two signed a document saying to thaw the embryos should either of them die before they were able to take next steps; however, loeb alleges he signed the document under duress.

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vergara said this allegation wasn’t true and, what’s more, if loeb was uncomfortable signing the documents for their first attempt there was plenty of time for him to bring up these concerns before their second

“it’s not like a contract they give you right there when they take my eggs out,” vergara said on the howard stern show in 2015, according to page six. “we did it two times. so you make the mistake the first time and a year later when you’re going to get another fertilization you say, ‘wait a minute, this time i want to do it this way,’ but two times and suddenly you want to change your mind?”

there was apparently no agreement for what would happen should the couple split. loeb, who is described by sources as pro-life, says he intends to raise any children without financial or parental support from vergara.

in a new york times op-ed, loeb argued that the right to be a parent should outweigh the rights of another person who wouldn’t have to be involved in raising a potential child.

“when we create embryos for the purpose of life, should we not define them as life, rather than as property?” loeb wrote in a new york times op-ed when the story initially broke. “does one person’s desire to avoid biological parenthood…[outweigh another’s] desire to be a parent?”

who controls embryos in canada?

canada is no stranger to difficult argument regarding the fate of pre-embryos.

in canadian law, couples that have embryos created from their own eggs and sperm have joint control. meaning if one spouse changes their mind and no longer wants to try to bring one of the embryos to term, the other will be unable to use them.

in 2018, a court case between a canadian ex-couple challenged the extent of these laws. the couple had purchased egg and sperm from the u.s., resulting in the creation of two viable embryos that had no genetic connection to either parents.

the woman had already carried one of the embryos to term, a child six-years old at the time of the divorce and whom the parents agreed to share custody of. the second embryo, however, remained.

the woman sued for the right to use the frozen embryo. because the embryo did not contain either of the couple’s genetic material, the courts relied in part on contracts the couple had signed prior to undergoing ivf. the woman was given full custody over the frozen embryo in exchange for re-imbursing her ex-husband for half of the cost of the sperm and egg (us $1,438).

she claimed at the time that she would not seek financial or parenting support for the child if the resulting pregnancy was successful, even though they would be a full sibling of the couple’s eldest child.

different approaches to embryo laws

these court case underline a contentious conversation that is becoming more frequent in modern life. since the rise of surrogacy means that embryos can be safely brought to term without the involvement of either parties, who exactly has the final word on what happens to these embryos?

should pre-embryos be treated like property, over which ownership and fate can be defined via contracts (as is being argued in the vergara versus loeb case); like potential children, whose rights and wellbeing are strictly governed; or as a very significant source of genetic material, though their existence could have serious implications for both parties regardless of how they are involved (as in canadian law)?

other u.s. states have taken different approaches than california and canada. arizona’s “parental right to embryo law,” for example, favours the rights of the parent who wants to bring the embryo to term and includes terms that protect the other party from having to support a potential child.

emjones@postmedia.com | @jonesyjourn

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