What can we learn from Nick Loeb and Sofia Vergara frozen embryo dispute?

ctress Sofia Vergara with former partner Nick Loeb.

ctress Sofia Vergara with former partner Nick Loeb. Photo: Christopher Polk/ Getty Images

When is a custody battle not a custody battle? When a businessman sues his movie star ex for the rights to their frozen embryos.

The bizarre case brought forward by Nick Loeb against Sofia Vergara reached its nadir with Loeb's New York Times op-ed, in which he invokes both parental rights and the 'sanctity of life,' as he seeks to convince readers that he should be permitted to bring the couple's embryos to term despite the wishes of Vergara.

The two signed a legal contract stipulating that the embryos could only be carried to term if both parties agree. Since Vergara clearly doesn't, Loeb's entire screed is moot. Legally, he does not have a leg to stand on.


I suspect Loeb is painfully aware of this and has therefore opted for an overwrought plea, complete with a mean ex who had an abortion against his wishes, and another mean ex who left him just as he was "running for a seat in the Florida State Senate."

In a nutshell, Loeb seems to think, or at least is arguing that, his unfortunate history overrides Vergara's legal rights. Loeb wants us to consider his parental rights despite the fact he is not a parent:

"When we create embryos for the purpose of life, should we not define them as life, rather than as property? Does one person's desire to avoid biological parenthood (free of any legal obligations) outweigh another's religious beliefs in the sanctity of life and desire to be a parent?"

This is a peculiar claim for someone who has willingly undergone IVF. While I am not opposed to it by any means, by its very nature IVF violates any notion of the right of the life of the embryos.

The process involves the fertilisation of far more eggs than are needed, in the hope that at least one of them 'sticks.' Embryos that are not implanted are either destroyed or frozen. It is for this reason that IVF is so vehemently opposed by those most likely to speak in favour of the sanctity of human life- evangelicals and conservative Catholics.

Loeb can't have it both ways. If he thinks his two "girls" are not property and have the right to life, he must extend this argument, and his compassion, to all the embryos produced in every singly IVF treatment, all over the world.

Anything less is admitting only those embryos he has personally selected has the right to life, in which case, he is admitting this is not about the embryos at all but about him.

In fact, he actually admits this, calling himself "pro-parent." At the risk of echoing Mrs Lovejoy, his selfish argument seems emblematic of the glorification of the status of parenthood itself, as opposed to the wellbeing of the actual children.

Recall the surrogacy case of Gammy, the boy with Down syndrome who born to a Thai surrogate and was left behind by his Australian parents who took home his healthy sister. More recently, another Australian couple abandoned a baby boy in India, despite warnings from High Commission staff in New Dehli that he could be stateless. This couple also took home this boy's sister, because already having a son at home, the couple only wanted a girl to "complete their family."

But back to Loeb.

In case his "sanctity of life" argument failed to win over readers, Loeb then invokes his fathers' rights:

"A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn't a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects?" 

In a word: no.

Women are "entitled" to bring a pregnancy to term because it is their body that is pregnant. At that stage, the issue is not (or shouldn't be) the right to be a parent or the right of the foetus to life.

The issue is whether or not a woman wishes to be pregnant since it her body that is directly impacted.  This false equivalency- equating an actual pregnancy with frozen embryos- completely dismisses the effects of the actual pregnancy on the pregnant woman's body.

Loeb then lands what I assume he thinks is the killer blow:

"When I was in my 20s, I had a girlfriend who had an abortion, and the decision was entirely out of my hands. Ever since, I have dreamed about a boy at the age he would be now."

How does Loeb know that the foetus was a boy? It doesn't matter. In Loeb's elaborate fantasy world, a woman did him wrong by depriving him of the mirror image of himself and now, years later, another woman must pay.

What's more, Loeb actually expects that the public will support his mission to shame and embarrass Sofia Vergara into letting him get his way because a completely different woman once defied him by exercising her reproductive rights.

Loeb and Vergara entered into a contract. Perhaps even more important, she decided to undergo an invasive procedure as part of a couple. Now that the couple no longer exists, she is morally, as well as legally, within her rights to request that the embryos they created together not be carried to term.

This case should set the alarm bells in anyone with even the remotest interest in pursuing IVF treatment one day. This is especially true for women who suffer the brunt of the discomforts and pains involved with the procedures. What Loeb is doing is a complete betrayal of the trust Vergara had once placed in him. Should he win, a very dangerous precedent will have been set.