What began as soap opera is turning into a master class in metaphysics. “Modern Families” TV star Sofia Vergara, 44, and her former partner Nick Loeb, 41, are at war over two frozen embryos in a California IVF clinic.
Readers who do not buy supermarket gossip magazines might not be familiar with these names. Vergara is the highest-paid actress in American television. Loeb is New York “royalty” with connections to the Loeb and Lehman families and an actor, director and producer in Hollywood, as well as dabbling in politics and starting up his own condiments business.
Now married to "True Blood" star Joe Manganiello, Vergara, who is Catholic, refuses to allow the embryos to be brought to term with a surrogate mother; Loeb, who is not, insists that they have a right to life.
The conflict highlights the fact that IVF inevitably creates insoluble ethical dilemmas. Once embryos have become part of a manufacturing process rather than a deeply personal act of love, the stage is set for a head-on collision between technology and humanity. As long ago as 1996 Pope John Paul II pleaded with IVF clinics to stop creating embryos. “There seems to be no morally licit solution regarding the human destiny of the thousands and thousands of ‘frozen’ embryos which are and remain the subjects of essential rights and should therefore be protected by law as human persons,” he said.
It is homicide if embryos are treated as medical waste; and if they are implanted in a surrogate, they are denied a relationship with their genetic mother. All the wisdom of Solomon cannot unravel this.
These abstract considerations are projected in technicolour on the screen of the Vergara-Loeb battle. Both combatants have deep pockets and wily lawyers. With 600,000 surplus embryos in deep freeze in the United States, the outcome of the case could set legal precedents in a number of areas.
The A-List couple created the frozen embryos in 2013 when they were living together, signing a contract that both had to agree if the embryos were placed in a surrogate mother. Then, in 2014, they split up.
When Loeb proposed the surrogate mother option, Vergara refused. She was content to leave them frozen. He sued to gain custody of the embryos; she fought to deny it to him. She claimed that the contract was valid; he disputes this.
Her arguments are reasonable: “More than a mother, a baby needs a loving relationship of parents that get along, that don’t hate each other,” she said in a TV interview. “I wouldn’t want to bring kids to the world that is already set against them. It would be so selfish.”
Loeb also sounds reasonable. “I think the misconception is that people don’t know the difference between an embryo and an egg,” he explained earlier this year. “A lot of people think I’m trying to steal her eggs and they don’t realize that an embryo is half mine — half my DNA and half her DNA. It’s actually a human being.”
The problem is that these positions, though both seemingly reasonable, are incompatible. If frozen, the embryos cannot live as human beings; if unfrozen, they cannot have a loving family.
In mid-November Vergara’s lawyers demanded that Loeb disclose the names of two former girl friends who had had abortions. These would be evidence that his belief that life begins at conception is insincere. “Oddly, Loeb wants us to believe that he supports a woman’s right to privacy, and to make a choice concerning reproduction. However, he seems to believe that his celebrity ex-fiancé, Sofia Vergara, does not have those same rights,” said her lawyer.
Loeb, who now has strong pro-life views, indignantly refused. “Could you imagine if you had moved on with your life, gotten married and had children and kept this a secret from your family, then all of a sudden 15 years later (you were) made to reveal your abortion to the world. Maybe your parents never knew, maybe your husband never knew, nor your children,” he told The New York Daily News. “For the California court to make these women wear a scarlet letter in today’s world is shocking.”
Loeb’s side has also taken a step forward recently. Last week a suit was filed in Louisiana, a state where frozen embryos are recognized as “juridical persons”, on behalf of Emma and Isabella, the names given to the two embryos. The plaintiff was someone named James Charbonnet, not Loeb, who is described as the trustee of a fund for their health care and education. By not being born, Charbonnet argues, the embryos have been deprived of their inheritance.
It is an ingenious argument, although whether it will succeed in California, where the embryos are actually located, is problematic.
Last year Loeb summed up his case in a New York Times op-ed. He was pleading his own cause, but his points are far more than soap opera theatrics:
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? 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?
A number of issues are emerging in the snowballing war between the two celebrities: whether embryos are human life or property; whether men and women have equal rights over unborn children; whether embryos are human beings; what should be done with the hundreds of thousands of surplus IVF embryos; and whether contracts for the disposal of embryos are binding.
Where will it end?
Unfortunately, in 10 years' time Emma and Isabella could still be in deep freeze, along with millions of other embryos whose parents can neither bear to dispose of them nor agree to bring them to life.