Modern Family star Sofia Vegara has been involved in a nightmare of a lawsuit over custody of frozen embryos since 2013, with the lawsuit originally brought in California by Ms. Vegara’s ex-fiance Nick Loeb. In a bizarre twist on the case, earlier this month Loeb brought a right-to-live lawsuit on the same grounds as his California lawsuit in Louisiana. However, the real bizarre twist is that it isn’t Loeb who’s bringing the lawsuit. Instead, in a first of its kind case, the lawsuit is being brought with the frozen embryos themselves as plaintiffs. An embryo is, despite the pun in the title, distinct from an egg in that it has been fertilized.
Loeb has decided to name the embryos Emma and Isabella for purposes of their lawsuit. The suit claims that the embryos are seeking “the right to be transferred to a uterus so they can be born and claim an inheritance” and asks the court to force Vegara to sell custody of the embryos to Loeb. It also, probably not coincidentally, came barely a week before a judge in California ruled on a motion for summary judgment and to sanction Mr. Loeb in a nearly identical case—motions that led Loeb to outright drop his case in California.
It’s also no coincidence that Loeb has chosen Louisiana to plead his case the second time. Louisiana is the only state in the country that actually has a statute naming embryos “juridical persons.” Without this statute, Loeb couldn’t pull the stunt he has—having the frozen embryos themselves bring the lawsuit.
Louisiana Law on Frozen Embryos
Louisiana is, without a doubt, among the most harshly restrictive states when it comes to reproductive rights and abortion. This is probably obvious from the fact that they’re the only state in the nation where Loeb could have brought a lawsuit with embryos as plaintiffs.
Louisiana Health Law goes further than any other state on the issue of frozen embryos—making them juridical persons. Hearing this, you’re probably asking yourself—“what the heck is a juridical person?” Basically, a juridical person is any entity other than a natural person that is recognized as a distinct legal entity with its own rights and duties. It commonly comes up in the context of corporations but Louisiana has extended the concept to frozen embryos, thus allowing them to sue on their own behalf—or even more strangely be sued by others.
Louisiana law doesn’t stop there, these same laws forbid the destruction of frozen embryos and require donors to instead put their embryos up for a sort of “uterus adoption” where the donors renounce their rights in favor of “another married couple.” So basically, the only option is to renounce rights, and allow another to act as a surrogate to the frozen embryos. However, “another married couple” is not there for no reason. The statute only allows married couples to implant the frozen embryos after donors give up their rights to them.
Perhaps most relevant, if one of the donors implants an embryo and that embryo develops into a child—that child is born with inheritance rights to both donors—in this case Vegara and Loeb.
These rights for frozen embryos in Louisiana—far beyond anywhere else in the nation—have allowed Loeb to bring his lawsuit. However, like his lawsuit in California, it is not the laws on reproductive rights that are likely to decide the day in court but rather simple contract law.
Who Gets to Decide? Agreements When Freezing a Fertilized Embryo
As you might imagine, deciding to fertilize and freeze an embryo with another person is a huge commitment. Like any huge commitment, it is one that should be—and usually is—entered into with extreme care and well understood agreements as to how the process will proceed. Thus, when a couple chooses to freeze a fertilized embryo, there is nearly always a contract which details how and when the embryos may be brought to term. For example, these contracts usually state whether there needs to be consent from one or both of the donors before an embryo may be brought to term.
Loeb and Vegara are no exception to this general rule and signed an agreement which states that the frozen embryos may only be brought to term with the consent of both of them. Loeb has argued in California, and certainly will in Louisiana, that the agreement did not address a situation where the two separated. However, regardless of the scope of the contract, the existence of such a contract means that it will be the first—and potentially last—thing that a court will address in deciding this case. If the contract is valid then Loeb is bound to its terms and simply cannot demand that the embryos be brought to term without Vegara’s consent.
With this in mind, it’s no surprise that Loeb’s new lawsuit targets the validity of the contract. Besides the argument to the scope of the contract which failed in California, Loeb has additionally argued that the agreement should be void because it violates Louisiana law.
If there is anywhere that a judge might decide that Loeb’s argument has merit and set aside the contract that has already lost him his case previously, Louisiana is that place. This case has the potential to set precedent as one of the first cases to deal with the interaction of Louisiana’s reproductive rights law and the enforceability of a contract.
Protecting Your Reproductive Rights
Louisiana, as mentioned already, is the only place in the country to limit a woman’s reproductive rights so substantially when it comes to frozen embryos. However, this case does serve to highlight the importance of a carefully crafted agreement if you and your partner are considering freezing an embryo. Generally, a simpler way to go about things is to freeze eggs rather than embryos. Where eggs are frozen as opposed to fertilized embryos the woman who provided those eggs has full autonomy over what she wants to do with them. That way, a woman can avoid the stress of a situation like Ms. Vegara’s.