On Friday, May 22, the legal battle between Sofia Vergara and Nick Loeb over frozen embryos they made together took a welcome turn in the ongoing fight for life when a judge granted Loeb permission to file an amended complaint. Whereas Loeb originally argued that Vergara shouldn’t be allowed to destroy the embryos by keeping them frozen beyond the point of viability, in the amended motion, Loeb is fighting for custody of the girls.
My initial suspicion that Loeb was facing an uphill battle because of the similar cases is thus turned on its head. Of the 10 lawsuits which are relevant to Loeb and Vergara, only two have had favorable outcomes for those who wanted to bring the embryos to term. With the amended complaint, obtained by The Federalist, Loeb is making a new argument and one that could provide a path forward for a tremendous victory for him and the daughters in question.
In the amended motion, the first argument highlighted is that although the media has used the term “contract,” the document Loeb and Vergara signed regarding their children is not a legally binding contract. Instead, it is merely a standard “Form Directive” used by the reproductive center, ART Reproductive Center Inc., which is also a defendant. Every patient of ART receives the same Form Directive without opportunity to revise it to reflect their personal desires. Additionally, ART doesn’t advise patients to seek legal counsel about it.
Don’t Kill My Kids
Loeb’s team argues that this Form Directive violates California Health and Safety Code in two ways. First, it didn’t include a donation option should the couple decide not to bring the embryos to term. State statute requires this option. Second, the Form Directive didn’t include an option for the embryos should the couple separate. California law requires that couples be presented with the following options for “disposition of the Female Embyros in the event of their separation: (a) made available to female partner, (b) made available to male partner; (c) donation for research purposes; (d) donated to another couple or individual ; or (f) other disposition that is clearly stated. Cal. Health & Safety Code §125315(b)(3).”
Beyond that, Loeb’s team introduced four other arguments in the amended lawsuit:
1) Evidence that Vergara’s team spoke about the story to the media in order to create publicity.
2) Evidence that Vergara consented to bring the embryos to term, verbally and in writing, prior to their creation.
3) Evidence that Vergara considers the embryos lives.
4) First ever use of the “balancing test” with regard to a lawsuit over embryos.
The motion says: “In prior cases when courts have engaged in a balancing test between the two parents, they have considered only the interests of the man and the woman in ‘procreational autonomy’ – meaning their constitutional right to decide whether to become a parent. We are asking the court to consider a third interest: the State’s interest in potential life. The United States Supreme Court has held that this is a valid interest and that it exists from the moment of conception. The California Supreme Court has also recognized this interest. Our argument is that, where there is disagreement over what should be done with embryos, this interest should create a presumption in favor of the person who wants to bring them to term.”
The Interests of the Parents and the Daughters
Invoking the balancing test is interesting, but, as argued in the lawsuit, not without foundation in both California state law and federal law:
The California legislature has recognized that unborn children have potential interests, and therefore enacted Cal. Civ. Code § 43.1, which states that ‘[a] child conceived, but not yet born, is deemed an existing person, so far as necessary for the child’s interests in the event of the child’s subsequent birth.’ The United States Supreme Court has recognized that the State has an important and legitimate interest in the potentiality of human life. It has also held that ‘the State’s interest in protecting potential human life’ exists and is compelling even before the viability of the potential human life. Webster v. Reproductive Health Services, 492 U.S. 490, 519, 109 S.Ct. 3040, 3057 (1989).
There’s much more to the amended motion than just statutes and the four arguments Loeb’s team is making. There are examples, via messages exchanged between Loeb and Vergara, of Vergara referring to the embryos as “girls,” which could bolster Loeb’s argument that Vergara considers the embryos lives. There are also examples of Vergara abusing Loeb, physically and verbally. The motion asserts that the verbal abuse didn’t solely occur at home, but also at ART when Loeb expressed concern about portions of the Form Directive and thus allegedly placed him under duress when signing portions of the document which concerned him.
But we’re not here to plow through every detail of the amended motion; that’s what the courts are for. What’s interesting here is how science and the determination of individuals like Loeb are changing the landscape in the evolving fight for life.
How Media Bias Affects the Case
Anne Hendershott, writing at The Washington Post, details the way the media is treating the fight. In her article, “Are embryos persons or property?,” Hendershott highlights how the media is dismissing Loeb’s claims.
As the father of the two female embryos, Mr. Loeb would seem to have a strong case. But most media commentators — including New York University ethicist Arthur Caplan — have dismissed Mr. Loeb’s claims. In an interview on CNN, Mr. Caplan claimed that ‘Loeb can keep the embryos as long as he pays the fees and keeps them frozen, but he’s never going to touch them for reproductive purposes.’
However, Mr. Caplan is hardly a disinterested bystander. He has already stated a bias against the idea of embryonic adoption — especially against the use of the term ‘snowflake babies.’ Snowflake babies is a term used by pro-life organizations committed to the adoption of embryos left over from in vitro fertilization. Former president George W. Bush promoted the adoption of these embryos — funding organizations that facilitated the adoptions and making public appearances with some of the ‘snowflake children’ who were born following embryo adoption as part of his campaign to end embryonic stem cell research. In response to the Bush administration’s support for the embryo adoption program, Mr. Caplan posted a 2003 commentary on NBCnews.com claiming that ‘using terms like “adoption” encourages people to believe that frozen embryos are the equivalent of children. But they are not the same.’
Before You Were Formed in the Womb
Caplan’s claims are fairly mainstream. As Charles C.W. Cooke noted in “Running Scared on Abortion” at National Review, 61 percent of Americans favor abortions in the first trimester. (Once the question shifts to the second- or third-term, support precipitously drops to a minority position.) As such, labeling an embryo as life will take a radical change in public opinion.
But as science has progressed and we’ve learned that babies might survive outside the womb as early as 22 weeks, that babies benefit from hearing their mother’s voice and heartbeat while still in utero, and that babies develop extremely quickly after conception, the “blob of cells” argument has quickly lost currency.
From the moment of conception, it is life. There isn’t some magical moment in which the spark flies in from the ether and animates a previously inanimate, yet growing, mass. Through this now highly-public fight, we may begin to give legal recognition to this truth. Loeb likely did not set out to change the law, to revolutionize how we think of embryos and rights and the state’s interest in the “potentiality of life,” but solely to save his daughters. If he prevails, though, his fight may end up saving far more lives than those two girls.