“Modern Family” Star’s “Modern” Battle in Family Court

Colombian native, Sofia Vergara, perhaps most famously known for her role in the hit television series, Modern Family, has involuntarily attracted media attention surrounding a legal dispute with her ex-partner, Nick Loeb.[1] The ongoing dispute involves a child custody battle, but not the type of custody battle that you are probably thinking of.[2] This custody battle is in regards to the estranged couples’ two frozen embryos, which were created in 2013 when the couple was still together.[3]

Following the break-up, Nick Loeb was insistent upon retaining custody of the frozen embryos so that he could “bring them to birth via a gestational carrier,” while Vergara maintained the position that the embryos be kept frozen until the pair could come to an agreement.[4] As a result, Loeb filed suit in California in hopes of retaining custody.[5] After getting word that the California judge was going to dismiss the case, Loeb dropped the suit, only to refile in his new home state of Louisiana, a coincidentally “Pro-life state.”[6] Vergara motioned to remove the lawsuit to federal court on the constitutional issue of privacy.[7]  She also argued that Louisiana’s child custody statue affects living children only. [8] The federal court was quick to remand the case back to Louisiana state court because the only issue left to be decided was the fate of the frozen embryos and that is a “state law custody claim over which federal courts lack jurisdiction.”[9]

What is not so highly publicized in the Loeb-Vergara custody battle, is the underlying tension that this very issue has caused between the states.[10] The complexity of frozen embryo disputes is intensified by the fact that “no federal law, and few state laws, addressing … the division of frozen embryos” exist.[11] This has caused long drawn out battles with “little protection … for those seeking a remedy for disposition of their preserved embryos.”[12]  The lack of federal uniformity is even more evident with the vastly different laws created by states who have engaged in law making on this topic.[13]

Custody proceedings involving frozen embryos has triggered some courts to determine whether frozen embryos are considered persons or property.[14]  Providing a classification for the embryos help courts determine what responsibilities, as to the embryos, that each parent should have in the event of a separation.[15] Since “embryo disposition is still a relatively new family law issue,” most courts have been hesitant to provide a classification for the embryos.[16]  However, some courts have decided to take action by classifying frozen embryos, depending on the state, as either property, property of “special character,” or people.[17]

New York, Tennessee, and Oregon are among the handful of states that consider frozen embryos as property. A New York court reasoned that “the disposition of pre-zygotes does not implicate a woman’s right to privacy or bodily integrity in the area of reproductive choice,” so therefore, “in a custody dispute over pre-zygotes, the relevant inquiry becomes who has dispositional authority over them.”[18] The Tennessee courts follow the same ideology, finding that “pre-embryos do not enjoy protection as ‘persons’ under federal law” and as a result, “do not “possess independent rights under the law.”[19] Missouri, similarly views frozen embryos as property, but not just any property, rather property of “special character.”[20] Missouri law defines property as “any external thing over which the rights of … use … are exercised.”[21] In McQueen v. Gadberry, a Missouri court found that since the frozen embryos are “outside” of a woman’s “uterus and cryogenically preserved and stored in an artificial environment,” they are external, however “they are entitled to a special request.”[22] The added “special character” aspect simply means that the frozen embryos “are to remain in their status quo” until both parties can agree as to their fate. [23]

To date, only one state has ventured to include frozen embryos in its definition as a person, Louisiana.[24] In 1986, Louisiana adopted a law, that states in pertinent part, that “an in vitro fertilized human ovum exists as a juridical person until such time as the in vitro fertilized ovum is implanted in the womb … which entitles such ovum to sue or be sued …[and] is not the property of the physician which acts as an agent of fertilization, or the facility which employs him or the donors of the sperm and ovum.”[25] By doing this, Louisiana has given identical rights to both people who are living, walking, and breathing, as well as frozen embryos that are currently infused with cytoprotectants and stored in temperatures as low as -321° Fahrenheit.[26]

What does this mean for you and your frozen embryos? One would say that it depends on the state that you live in. However, what we do know for sure is that battles over frozen embryos will continue to be complex, long, and drawn out until Congress creates laws that shed light on this topic. For Loeb and Vergara, their battle rages on, five years and counting.[27] Perhaps, there may be an outcome favorable to Loeb as the case is currently making its way through the Louisiana court system.

[1] Adam Augustyn, Sofia Vergara, Britannica (Sep 11, 2019), www.britannica.com/biography/Sofia-Vergara; Shari Puterman, Sofia Vergara loses ‘custody battle’ over frozen embryos, USA Today (June 27, 2018, 3:14 PM), www.usatoday.com/story/life/people/2018/06/27/sofia-vergara-custody-battle-frozen-embryos-nick-loeb/739250002/.

[2] Id.

[3] Id.

[4] Mona Charen, Sofia Vergara, Frozen Embryos and Forced Procreation, Creators (Jan. 12, 2018), www.creators.com/read/mona-charen/01/18/sofia-vergara-frozen-embryos-and-forced-procreation.

[5] Sam Reed, Sofia Vergara’s Complicated Legal Battle, Explained, InStyle (June 29, 2018, 2:00 PM), www.instyle.com/news/sofia-vergaras-ex-suing-her-right-implant-their-embryos-another-woman.

[6] Shari Puterman, supra note 1; Loeb v. Vergara, No. 18-3165, 2018 U.S. Dist. LEXIS 115197 at 6 (E.D. La. July 11, 2018).

[7] Nancy Dillon, Sofia Vergara in renewed battle to keep frozen embryo lawsuit out of Louisiana state court, Daily News (June 25, 2018, 6:50 PM) www.nydailynews.com/news/ny-news-nick-loeb-still-battling-sofia-vergara-over-embryos-20180625-story.html#.

[8] Shari Puterman, supra note 1.

[9] Nancy Dillon, supra note 7; See, e.g., Loeb, No. 18-3165, 2018 U.S. Dist. LEXIS 115197 at 22.

[10] Anna Stolley Persky, Deep Freeze: Contentious Battles Between Couples Over Preserved Embryos Raise Legal And Ethical Dilemmas, 102 A.B.A.J. 46 (2016); National Cancer Institute, www.cancer.gov/publications/dictionaries/cancer-terms/def/embryo-freezing (last visited Oct. 7, 2019).

[11] Id.

[12] Vikki Ziegler, In The Event Of A Divorce, Who Keeps The Embryos Created From IVF?, Huffington Post (Feb. 15, 2017, 6:12AM), www.huffingtonpost.com/entry/in-the-event-of-a-divorce-who-keeps-the-embryos-created_us_589afa50e4b0985224db5c22.

[13] David Orenstein, For frozen embryos in dispute, scholars propose guidelines, Brown U. (July 18, 2016), www.news.brown.edu/articles/2016/07/embryos.

[14] Meghan Hamilton, Embryos: People or Property?, The Humanist (Sep. 22, 2017), www.thehumanist.com/commentary/embryos-people-property.

[15] Elizabeth A. Trainor, J.D., Right of Husband, Wife, or Other Party to Custody of Frozen Embryo, Pre-embryo, or Pre-zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R.5th 253, 255 (2001).

[16] Id.

[17] I Did Not Consent to Further Use of Frozen Embryos – What Are My Rights?, HG.org, www.hg.org/legal-articles/i-did-not-consent-to-further-use-of-frozen-embryos-what-are-my-rights-42438 (last visited Oct. 7, 2019); Legal Status, La. Stat. Ann. § 9:124 (2018); McQueen v. Gadberry, 507 S.W.3d 127, 148 (Mo. Ct. App. 2016).

[18] Kass v. Kass, 91 N.Y.2d 554, 566 (N.Y. 1998).

[19] Davis v. Davis, 842 S.W.2d 588, 595 (Tenn. 1992).

[20] McQueen, 507 S.W.3d at 158.

[21] Id. at 148.

[22] Id. at 148-149.

[23] Id.

[24] Legal Status, La. Stat. Ann. § 9:124 (2018).

[25] Id.

[26] Embryo Cryopreservation: Procedure Details, Cleveland Clinic, www.my.clevelandclinic.org/health/treatments/15464-embryo-cryopreservation/procedure-details (last visited Oct. 7, 2019).

[27] City News Service, Judge Rules in Favor of Former Vergara Fiancé in Latest Embryo Battle Chapter, NBC Los Angeles (Sep. 24, 2019 at 11:29 AM) www.nbclosangeles.com/news/local/Judge-Rules-in-Favor-of-Former-Vergara-Fiance-in-Latest-Embryo-Battle-Chapter-561242721.html.