Sofia Vergara's frozen embryo case could make history

By Melissa Busch | Mar 10, 2017

NEW ORLEANS — Major legal precedent would be set if the former boyfriend of actress Sofia Vergara was granted custody of her frozen embryos.

NEW ORLEANS — Major legal precedent would be set if the former boyfriend of actress Sofia Vergara was granted custody of her frozen embryos.

Vergara and her attorneys have asked a federal judge in New Orleans to dismiss a suit filed by her ex-boyfriend, Nick Loeb. He is seeking full custody of two frozen embryos, which are stored at a facility in Beverly Hills, California, that were conceived by the couple, according to court records. He wants the embryos to develop and result in live births.

Monica Hof Wallace, a Loyola University professor of law, told the Louisiana Record there is no legal precedent for this type of case.

“I have not seen a case like this in Louisiana or elsewhere,” Hof Wallace said. “This would be a big deal.”

The most interesting part of the case is the jurisdiction, Hof Wallace said. There is no other state in the nation that has a human embryo law.

“Louisiana is the only state with a statute that declares a fertilized ovum as a person and that it can’t be destroyed,” she said.

The venue, which is one of the arguments Vergara’s attorneys make in her claim for dismissal, is a major factor in the case, according to court records. Although the frozen embryos are housed in Beverly Hills, the case is in a Louisiana court because Loeb has ties there and a trust was set up in the state for the embryos and the trustee, James Charbonnet, according to court records.

Vergara’s attorneys claim the actress has no close ties to the state and that she did not consent to the trust. Her attorneys also claim that Loeb filed suit in Louisiana because of its right-to-life laws.

“I think this case is getting a lot of press because Sofia Vergara is involved, but this is not a perfect case because the embryos are in California,” Hof Wallace said. “There are procedural issues with this case that may prevent it from getting to its merits.”

If a federal judge does end up granting custody to Loeb, a dangerous precedent could be set.

“I think it would deter people from fertilizing and freezing embryos,” Hof Wallace said. “I think many people would not like the idea of a relationship being over and, then, your embryos being used to have a child that is carrying your genetic makeup.”

Hypothetically speaking, if Loeb were granted custody of the embryos, had a surrogate carry them and babies were born, the question is raised of whether he can request child support from Vergara.

“If you compare it to the reverse, a man can have to pay child support if a woman has his child, even if he doesn’t want to be a part of that child’s life,” Hof Wallace said. “I think it is a possibility, but I don’t think it is probable.”

According to a report in the Times-Picayune, attorneys for the embryos are asking the court to rescind a contract that requires both parties to give consent before taking action on the embryos. Action would include destroying them if the parents died.  

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