June 23, 2015 By Paul Wallin
sofia vergera embryo debate
Sofia Vergera and ex-husband Nick Loeb

Most Hollywood breakups involve disputes over financial matters, including division of assets as well as child and spousal support issues. Occasionally, a celebrity divorce story comes along that involves more than just the typical reasons for the end of a relationship, and instead poses a unique philosophical or legal question.

Such is the case with the end of the engagement between actress Sofia Vergara and her fiancé, Nick Loeb. Vergara is one of the stars of the hit television show Modern Family, and is reported to be the highest paid person currently on television, pulling in an estimated $37 million in 2013.1 Loeb is a multi-millionaire businessman who has dabbled in politics, including a brief run at representing Florida in the United States Senate that came to an abrupt end after a car accident in 2010 left him severely injured.2

When Vergara and Loeb ended their engagement in May 2014, there was an open issue in the relationship that could set a legal precedent in California. After their engagement began, Vergara and Loeb agreed to have children via a surrogate mother. To that end, the couple created two embryos that were to be frozen – a process known as cryopreservation – until a suitable surrogate could be found. Before the frozen embryos could be implanted, the couple ended their engagement, leaving the fate of their potential children to be decided. Loeb is now suing Vergara for custody of the embryos.

Contractual Obligation or Reproductive Coercion?

Vergara wants the embryos to remain frozen indefinitely; Loeb wants a court to give him sole custody of them so he can become a father through a surrogate as the couple had originally planned. At the time they devised this plan, Vergara and Loeb signed a contract that stated that the embryos would only be brought to term if both parties agreed to do so. The directive also stated that if one of them should pass away, the remaining party would have control over the embryos’ fates.

However, according to an opinion piece Loeb wrote in the New York Times, he believes that life begins at conception, and that the contract that he and Vergara signed is not binding because it failed to provide alternative options for donating the embryos if the parties ended their relationship.3 Loeb’s attorney is arguing that such a provision is a requirement of California law, and that a contract that fails to include this provision is void.

In addition, Loeb is claiming in his lawsuit that he was “coerced” into making the agreement, and that Vergara was physically, verbally and emotionally abusive toward him. He claims that at times during their relationship, she punched him in the face, kicked him and called him both a “loser” and “worthless.” Vergara has flatly denied those allegations.

The Legal Future of Assisted Reproduction

Loeb’s Times piece refers to 10 similar cases throughout the United States, none of which appear to have been in California. With so little precedent, it is difficult to predict the effect this case could have on agreements between unmarried persons in this state who want to take advantage of assisted reproductive technologies.  If the case does go to trial and Loeb is successful, it is possible that contracts for procedures such as cryopreservation of embryos and in-vitro fertilization will have to include language that explains what will happen to the embryos in the event that the couple ends their relationship.

The future of this area of the law may be uncertain, but the case has made one thing abundantly clear: a lawsuit of this type could be avoided through careful planning and discussion of the potential issues that a couple might face before moving forward with having children through assisted reproduction. Similar to entering into a marriage, the decision to have children, whether through natural or medically assisted methods, is a lifetime commitment. Consulting with an attorney before moving forward can potentially prevent the emotional, mental and financial strain of a lengthy dispute years later.

While it is understandable that a couple of people who want children together would not want to talk to an attorney about the possibility that their relationship might end one day, the Vergara-Loeb lawsuit should be a reminder that the unforeseen can and often does happen.

The Family Law Attorneys at Wallin & Klarich are Ready to Help

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Contact an experienced attorney at Wallin & Klarich today

If you are involved in a family law matter, you should speak with an attorney who is experienced in family law. At Wallin & Klarich, our skilled and knowledgeable family law attorneys have over 30 years of experience helping our clients with child custody and divorce matters. We will work diligently to protect your rights. If you choose Wallin & Klarich to guide you through the this process, you can trust that your case will be in very capable hands.

With office locations in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, an experienced Wallin & Klarich family law attorney is nearby no matter where you are located.

For a free phone consultation, call (888) 749-7428 today. We will be there when you call.

1. Vanna Le, “Sofia Vergara Is (Once Again) The Highest-Paid TV Actress,” Forbes.com, September 3, 2014, available at http://www.forbes.com/sites/vannale/2014/09/03/sofia-vergara-is-the-highest-paid-tv-actress-of-2014-for-third-year/

2. Marc Caputo, “Sorry, gawkers: Sofia Vergara’s bf won’t run for U.S. Senate. What about State Sen.?” The Miami Herald, November 17, 2011, available at http://miamiherald.typepad.com/nakedpolitics/2011/11/sorry-gawkers-sofia-vergaras-bf-wont-run-for-us-senate-state-sen.html

3. Nick Loeb, “Sofía Vergara’s Ex-Fiancé: Our Frozen Embryos Have a Right to Live,” The New York Times, April 29, 2015

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