updated 3:27 PM UTC, Oct 27, 2016

Sofia Vergara’s Has No Case


( 4UMF NEWS )Sofia Vergara’s Has No Case:

Sofía Vergara, the vivacious Modern Family actress, is embroiled in an ugly legal battle over frozen embryos created from her eggs, and fertilized with her ex-fiance’s sperm. That ex, Nick Loeb, has taken to the New York Times op-ed section to defend his lawsuit against Vergara. Loeb wants the right to turn the two embryos in question into actual people.

Vergara very much doesn’t want this to happen, and according to the contract both signed when they froze the embryos, that’s her right. Per Loeb’s op-ed, “We signed a form stating that any embryos created through the process could be brought to term only with both parties’ consent.” Loeb says he’s asking the court to have the contract voided because it didn’t specifically address what happens if the couple separated.

I asked University of Florida law professor Lee-ford Tritt, who is an expert on both estate planning and family law, about the validity of Loeb’s argument; Tritt thinks it’s pretty weak. Contracts like the one that Loeb and Vergara signed “are generally always upheld,” Tritt explains.

The fact that the contract that the pair signed doesn’t mention what would happen if they separated isn’t very compelling; the contract already says that the embryos could only be brought to term with both of their consent, so whether or not they’re still together isn’t really relevant.

Even if the contract were to be voided by the court (which is unlikely), that doesn’t mean that Loeb would be allowed to bring the embryos to term. The precedent in these kinds of cases is that right not to become a parent trumps the right to become a parent.

In his op-ed, Loeb asks, “When we create embryos for the purpose of life, should we not define them as life, rather than as property?” But the court isn’t really treating them as property in these decisions; it is simply taking the rights of the parents into account.

Tritt pointed me to a 1992 case in Tennessee, Davis vs. Davis, that illustrates this precedent. Junior Lewis Davis filed for divorce from his wife, Mary Sue. They had done several failed rounds of IVF using Mary’s eggs and Junior’s sperm before they split, and there were some leftover frozen embryos still stored at the clinic. Mary wanted to use the eggs or give them to another couple; Junior wanted them destroyed.

The court found in favor of Junior, and outlined a process for future disagreements: If there is a disagreement, courts should look at prior written agreements about disposing the embryos; if the agreements are unclear, the person who doesn’t want to procreate should normally prevail.

In the few cases where the person who does want to procreate prevailed, the circumstances are very different from Loeb’s. He mentions two such cases in his op-ed, “In both cases, the woman had undergone chemotherapy treatment and the embryos were her last chance to have a biological child; judges ruled that the woman’s interest in becoming a parent outweighed the man’s interest in not becoming a parent.”

These cases—which are anomalies—seem to have no bearing on Vergara and Loeb’s situation. Loeb even says in the article that he has “every intention” of starting a family on his own. He doesn’t need Vergara’s eggs to do so.

Loeb attempts to tug at the heartstrings of readers by referring to the two female embryos he and Vergara created as “our girls.” And he tries to make a pro-life argument about the personhood of those embryos. But no state in the union has agreed (at least so far) that a fertilized egg is a “person.” And while he might win some pro-life supporters in the court of public opinion, it’s not going to help him win his case.


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