By Megan E. Cobb

After six years, Sofia Vergara has been granted a permanent injunction preventing her ex-partner, Nick Loeb, from using the frozen embryos they created together without her explicit written permission.[1]  This decision is just one step in a long court battle between the two which dates back to 2014, when Loeb filed suit in Santa Monica, California, “to protect the frozen embryos” he created with Vergara.[2]  In April 2015, Loeb wrote an op-ed in the New York Times that claimed that, in his opinion, Vergara’s desire to keep their two embryos frozen indefinitely was tantamount to killing them.[3]  The judge in the Los Angeles Superior Court ruled that Loeb breached a contract signed by both himself and Vergara by setting up a trust for the embryos and suing for custody on behalf of the embryos in Louisiana.[4]  As for Loeb’s Louisiana suit, Judge Regina Bartholomew-Woods stated that it is clear that Loeb was engaging in forum shopping, and that he and his counsel engaged in behavior which “makes a mockery of the Louisiana legal system and the bar and is abhorrent.”[5]  While at first blush this seems to be simply a private dispute between previous partners, this case and the rhetoric surrounding it touch on important questions regarding personhood, when life begins, and the importance of consent in matters regarding bodily autonomy.

One issue in the case between Loeb and Vergara is that these are two people with strikingly different opinions on the topic of personhood.  Loeb is of the opinion that these embryos are babies, and thus are humans entitled to the protection of the court and with rights of their own.[6]  In a statement released by Loeb, he said, “It’s sad that Sofia, a devout Catholic, would intentionally create babies just to kill them.”[7]  Vergara, on the other hand, has never stated that she wants the embryos to be destroyed, wanting instead to “leave the embryos frozen indefinitely.”[8]  She does not seem to view the embryos as humans, and embryos are not recognized as having constitutional Fourteenth Amendment rights.[9]  However, some state law does recognize rights inherent to unborn human fetuses.[10]  Currently, thirty-eight states have fetal homicide laws, and at least twenty-nine of those states have laws which apply to the earliest stages of fetal development.[11]

Under the law of some states, such as Missouri, frozen embryos are not human life, but marital property.[12]  Judge Robert Clayton III, in a 2016 decision, stated that a bid to apply a state’s law defining life as beginning at conception would be at odds with a non-consenting donor’s rights to privacy, freedom from government interference, and freedom not to procreate.[13]  In McQueen v. Gadberry,[14] a marriage dissolution proceeding, two frozen embryos were found to be marital property, and the embryos were awarded to the husband and wife jointly.[15]  In this case, the wife appealed for custody of the embryos in order to possibly implant them at a later date.[16]  This Missouri decision is in line with the decision in Vergara’s case, because the court in both cases awarded joint custody to both parties, meaning that neither could make any decision regarding the embryos without the consent of the other.[17]

Some lobbying groups and religious organizations do view frozen embryos as human life.[18]  These groups promote the belief that life begins at fertilization (also known as “fetal personhood”).[19]  If such groups are successful at lobbying Congress to pass bills which guarantee fundamental constitutional rights to embryos at fertilization,[20] obstetricians, gynecologists, and infertility specialists warn that infertility treatments such as in vitro fertilization (“IVF”) may become impossible to perform.[21]  These doctors are also concerned that “personhood” legislation could put doctors in danger of criminal liability when dealing with issues such as ectopic pregnancies.[22]  These complications would make IVF, already cost-prohibitive to many couples,[23] much more difficult to access.

Another issue the case between Vergara and Loeb raises is a person’s right to decide what to do with parts of their own body.  For instance, a living person’s decision to donate an organ “must be completely voluntary and free from pressure.”[24]  While in Vergara’s case, the tissue donated has already been removed from her body, it is still her egg that was used to create the embryo.[25]  If a living person must consent completely voluntarily and free from pressure to donate a kidney,[26] should a decision regarding the use of an embryo be any different?  It would seem so: cases involving embryos also bring in the question of an individual’s right not to procreate.

In 1992, the Tennessee Supreme Court decided the case of Davis v. Davis.[27]  In Davis, the court stated that the right to procreational autonomy involves two rights of equal significance: the right to procreate and the right to avoid procreation.[28]  The court also found that the state’s interest in potential human life is not sufficient to justify an infringement on an IVF egg or sperm donor’s procreational autonomy,[29] and that “an interest in avoiding genetic parenthood can be significant enough to trigger the protections afforded to all other aspects of parenthood.”[30]

However, other states have passed legislation that holds a person’s right to procreate at a higher level of sanctity than another’s right not to procreate.  Arizona’s Embryo Statute went into effect in August 2018.[31]  Under the Embryo Statute, courts tasked with the disposition of frozen embryos must award the embryos to the spouse who intends to allow the embryos to develop to birth.[32]  Note the must in the sentence above: even if the spouses previously agreed to a disposition of the embryos, courts must award the embryos to the spouse who intends to allow the embryos to develop to birth.[33]  The statute attempts to alleviate concerns of unwanted parenthood, stating that if the spouse who is not awarded the embryos does not consent to being a parent, the resulting child will not be a child of that spouse and will have no rights, obligations, or interests with respect to the non-parent.[34]  Proponents of this statute and others like it argue that “the decision to procreate takes place at the time of the creation of the embryo, not at its implantation.”[35]  Such assertions could confound the “freedom not to procreate” argument made in cases such as McQueen.[36] 

The questions a court must answer here are far-reaching, despite the issue of frozen embryo custody most often arising in divorce cases.[37]  Enshrining fetal personhood in law could have negative repercussions for women’s healthcare, force doctors to limit access to abortions, and put women in danger of prosecution if they have a miscarriage.[38]  Today, fetuses and frozen embryos do not have constitutional rights under the Fourteenth Amendment.[39]  A question must be asked by states: Is an embryo created for IVF its own entity, or should it be viewed as a combination of the tissue of two separate individuals, each with their own rights and opinions on its disposition?  Unless the Supreme Court finds that embryos do have such constitutional rights, it will continue to be up to the states to determine the best way to move forward with laws surrounding the disposition of frozen embryos, and whether one parent’s right not to procreate outweighs another’s right to bring the embryos to term.

[1] Ally Mauch, Sofia Vergara Wins Court Battle: Judge Rules that Ex Nick Loeb Can’t Use Embryos Without Consent, People (Mar. 3, 2021, 1:59 PM), https://people.com/tv/sofia-vergara-judge-rules-ex-nick-loeb-cant-use-embryos-without-consent/.

[2] Complaint, Doe v. Doe, SS02458 (Cal. Super. Ct. Aug. 24, 2014).

[3] Nick Loeb, Sofía Vergara’s Ex-Fiancé: Our Frozen Embryos Have a Right to Live, The New York Times (Apr. 29, 2015), https://www.nytimes.com/2015/04/30/opinion/sofiavergaras-ex-fiance-our-frozen-embryos-have-a-right-to-live.html?auth=login-google.

[4] Ian Mohr, The Battle for Sofía Vergara and Nick Loeb’s Embryos May Finally Be Over, Page Six (Mar. 3, 2021, 12:16 PM), https://pagesix.com/2021/03/03/sofia-vergara-wins-big-in-frozen-embryos-suit-against-nick-loeb/.

[5] Loeb v. Vergara, No. 2020-CA-0261, 2021 La. App. LEXIS 90, at *84 (La. Ct. App. Jan. 27, 2021).

[6] Mauch, supra note 1.

[7] Id.

[8] Melody Chiu, Sofia Vergara’s Ex Nick Loeb Defends Frozen Embryo Lawsuit: I’ve Dreamed of Being a Dad, People, https://people.com/celebrity/sofia-vergaras-ex-nick-loeb-defends-frozen-embryo-lawsuit-ive-dreamed-of-being-a-dad/ (last updated Apr. 29, 2015, 9:35 PM).

[9] Roe v. Wade, 410 U.S. 113, 158 (1973) (“All this, together with our observation . . . that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”).

[10] State Laws on Fetal Homicide and Penalty-enhancement for Crimes Against Pregnant Women, National Conference of State Legislatures (May 1, 2018), https://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx.

[11] Id.

[12] Jim Suhr, Frozen Embryos Are Property, Not Humans, Court Rules, KQED (Nov. 8, 2016), https://www.kqed.org/futureofyou/283679/frozen-embryos-are-property-not-humans-court-rules.

[13] Id.

[14] 507 S.W.3d 127 (Mo. Ct. App. 2016).

[15] Id.

[16] Id. at 134.

[17] Id.

[18] See generally Christina Cauterucci, What Should Be the Fate of a Spare Frozen Embryo?, Slate (Jan. 28, 2016, 11:48 AM), https://slate.com/human-interest/2016/01/frozen-embryos-and-the-anti-abortion-activists-who-love-them.html (citing objections to the McQueen v. Gadberry decision by groups such as the Thomas More Society and Missouri Right to Life); What’s Wrong with Fetal Rights, ACLU, https://www.aclu.org/other/whats-wrong-fetal-rights (last visited Mar. 25, 2021) (laying out various issues brought up by bills advocating for fetal rights and personhood).

[19] Andrea Michelson, Experts Say Amy Coney Barrett’s Nomination Could Threaten ICF. Here’s Why, Insider (Oct. 19, 2020, 4:33 PM), https://www.businessinsider.com/amy-coney-barretts-nomination-could-threaten-ivf-experts-explain-2020-10; Richard M. Doerflinger, Human Embryo Research Is Illegal, Immoral, and Unnecessary, United States Conference of Catholic Bishops (Jul. 18, 2001), https://www.usccb.org/issues-and-action/human-life-and-dignity/stem-cell-research/human-embryo-research-is-illegal-immoral-and-unnecessary (testimony of Richard M. Doerflinger on behalf of the Committee for Pro-Life Activities United States Conference of Catholic Bishops before the Subcommittee on Labor, Health and Human Services, and Education Senate Appropriations Committee).

[20] See generally Sanctity of Human Life Act, H.R. 586, 115th Congress (2017) (a bill declaring that “the right to life guaranteed by the Constitution is vested in each human and is a person’s most fundamental right; (2) each human life begins with fertilization . . . at which time every human has all the legal and constitutional attributes and privileges of personhood,” and that Congress, the states, Washington, D.C., and U.S. territories have the authority to protect all human lives as defined in this bill).

[21] See Craig Niederberger, M.D., et al., For the Supreme Court: Choose Another, 114 Fertility & Sterility 941, 941 (Oct. 13, 2020), https://www.fertstert.org/article/S0015-0282(20)32560-7/fulltext (“Legislation that restricts doctors from using the standard treatments today, which carefully manage an egg with a sperm inside, would render those procedures impossible to perform.”).

[22] Rob Mank, Doctors Call Mississippi “Personhood” Initiative Dangerous, CBS News (Nov. 4, 2011), http://www.cbsnews.com/news/doctors-call-mississippi-personhood-initiative-dangerous.

[23] IVF Cost: Analyzing the True Cost of In Vitro Fertilization, CNY Fertility, https://www.cnyfertility.com/ivf-cost/ (last updated Oct. 12, 2020) (“A complete In Vitro Fertilization cycle can cost anywhere from $4,900 to over $30,000.”).

[24] Making the Decision to Donate, National Kidney Foundation, https://www.kidney.org/transplantation/livingdonors/making-decision-to-donate (last visited Mar. 25, 2021).

[25] Loeb v. Vergara, No. 2020-CA-0261, 2021 La. App. LEXIS 90, at *3 (La. Ct. App. Jan. 27, 2021) (“Subsequently, Ms. Vergara and Mr. Loeb underwent several IVF treatments, which resulted in several pre-embryos.”).

[26] See National Kidney Foundation, supra note 24.

[27] 842 S.W.2d 588 (Tenn. 1992).

[28] Id. at 601.

[29] Id. at 602.

[30] Id. at 603.

[31] Ariz. Rev. Stat. § 25-318.03.

[32] Id. § 25-318.03(A)(1).

[33] Id. § 25-318.03(B).

[34] Id. § 25-318.03(D).

[35] Amber Macias-Mayo, Frozen Embryos: The Law at a Crossroads, Walther Bennett Mayo Honeycutt (Feb. 25, 2020), https://www.wbmhlaw.com/2020/02/25/frozen-embryos-the-law-at-a-crossroads/.

[36] See Suhr, supra note 12.

[37] See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); McQueen v. Gadberry, 507 S.W.3d 127 (Mo. Ct. App. 2016).

[38] See Mank, supra note 22; A Woman’s Rights: Part 1, When Prosecutors Jail a Mother for a Miscarriage, N.Y. Times (Dec. 28, 2018), https://www.nytimes.com/interactive/2018/12/28/opinion/abortion-pregnancy-pro-life.html (discussing a woman charged with abuse of a corpse after miscarrying twins).

[39] See Roe v. Wade, 410 U.S. 113, 158 (1973) (“All this, together with our observation . . . that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”).

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