How Is It Even Possible For Sofía Vergara’s Embryos To Sue Her? A Harvard Law Prof Weighs In

Photo: Matt Baron/BEI/Shutterstock.
The already-unusual legal battle over Modern Family actress Sofía Vergara’s frozen embryos reached a surprising new chapter on Tuesday — when the embryos sued Vergara. Yes: Two unborn, un-gestated frozen pre-embryos became the plaintiffs in a right-to-live lawsuit. How is this possible? How common is it? And what does it all mean legally? Here’s what to know.

What happened?

Like many couples engaging in assisted reproduction, Vergara and then-fiancé Nick Loeb used in vitro fertilization (IVF) to create pre-embryos. (Jargon note: Some, especially on the right-to-life side, prefer the term “early embryo” because they think the term “pre-embryo” devalues the entities. I use the term that is most common in the law without intending to take sides on who has the better terminology or attaching much weight to it.) More specifically, Vergara’s eggs were harvested and combined outside the body with Loeb’s sperm to produce embryos that could then be implanted into a uterus to hopefully produce a successful pregnancy.

In most IVF clinics in America, before IVF or freezing is performed, the couple is asked to specify in writing their “dispositional preference” for the pre-embryos — that is, what should be done with them in the event the couple splits up, or one or both parties die. Among the common options are donating the pre-embryo to research, destroying the pre-embryo, making the pre-embryo available to the male partner to use for reproduction with another woman, making the pre-embryo available to the female partner for reproduction, or indefinite freezing.

According to Page Six, a First Amended Complaint filed originally in California court pertaining to this case (Refinery29 was unable to obtain court filings by press time, so I have tried to explain the situation more generally and refrain from commenting directly on the merits of this case) suggests that Vergara and Loeb initially did a first round of IVF, successfully fertilized some eggs to create pre-embryos, and attempted to implant them in a surrogate mother. While many women undergo IVF intending to carry the baby to term themselves, others use a surrogate. In this instance we would call the woman a “gestational” surrogate to denote that the surrogate is carrying the child but is not its genetic mother — that would be Vergara. The initial attempts at surrogacy were unsuccessful. The couple allegedly conducted another round of IVF, froze the resulting pre-embryos for later use in a surrogate, but their relationship ended before they could find a new surrogate to work with.

That breakdown has resulted in this legal case, with the media reporting that Loeb is suing for the right to have two of the frozen embryos (which he apparently has named Isabella and Emma, according to Page Six) implanted in a surrogate. He has framed his claims in the language of the right-to-life movement, claiming that these are his “children” and they have a right to live.

Vergara, for her part, according to press reports, has claimed that “the genetic material was created pursuant to a written agreement that required both parties’ written consent to attempt to create a pregnancy,” and that since she refuses that consent now, Loeb should not be allowed to use the pre-embryos for reproduction.

Two unborn, un-gestated frozen embryos became the plaintiffs in a right-to-live lawsuit.

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Has this kind of thing ever happened before?

There have been, sadly, a number of cases with similar fact patterns litigated across America (disclosure: I have served as an expert in one of these cases). When I surveyed the case law in a July 2016 journal article, I found 11 states that had decided cases with similar facts, and I am aware of at least one more case in Missouri decided last month but likely to be appealed. We are likely to see many more because, by some estimates, there are currently more than one million cryopreserved embryos in America, although the exact number is contested.

These cases vary on a few important factors:
1. Whether the genetic parents are in a relationship or legally married
2. Whether the couple indicated dispositional preferences, and, if so…
3. Whether a document indicating dispositional instructions was part of the informed consent document or separate from it
4. Whether the court regarded it as legally binding
5. Whether the court treated such agreements as enforceable
6. Whether one of the parties has no ability to reproduce other than through using these frozen pre-embryos.

There are three ways these cases can be decided: first, the court could require contemporaneous (a.k.a. current) mutual consent now, no matter what the parties agreed to earlier; second, the court could treat the disposition agreement as a contract to be enforced; third, the court could balance the interests of the party seeking to implant (the right to procreate) against those of the opposing party (the right not to procreate).

How do these cases usually turn out?

Every state is free to make its own law in this area, and no state is bound by another. The majority of these cases have come out against the party seeking to use the embryos for reproductive purposes, and the only cases that have gone the other way have involved a woman who could not reproduce without access to these pre-embryos. This does not appear to be the situation here: Loeb has not claimed inability to reproduce without the embryos.

One twist in this case is that according to media report, Loeb will be arguing not just that he has a right to procreate, but that the pre-embryos themselves have rights to be implanted and eventually (if all goes well) be born. A somewhat similar argument was raised in the Missouri case decided in November, but was unsuccessful. That case is on appeal, and the right-to-life movement presumably hopes to use this case as a way of pushing this argument. The filing in Louisiana may be strategic, because other elements of Louisiana tilt towards the protection of frozen embryos.

However this case turns out — and please forgive the pun — it’s safe to say this is a decidedly modern family situation.

I. Glenn Cohen is a professor at Harvard Law School, faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and an expert on reproductive technologies.

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