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Sophia Vergara Sued Over Frozen Embryos

By Christopher Coble, Esq. on April 16, 2015 | Last updated on March 21, 2019

In a divorce, if you have kids, the court will usually grant one side primary custody and the other side visitation. In case of abortion, a woman's choice to abort or not usually trumps the man's choice. But, what happens to frozen embryos when neither side can agree?

Sophia Vergara has been sued by former fiance Nick Loeb for custody of two frozen embryos. When the couple split, Loeb wanted to keep the embryos frozen, while Vergara wants the embryos destroyed. The parties did not have any written agreement on what would happen in case of a split.

So, who wins? Who has control of embryos when a couple splits up?

Right to Reproduce?

While the U.S. Constitution does not explicitly promise a right to reproduce, the Supreme Court has recognized it as a fundamental personal right in several cases. Conversely, you also have a right to not reproduce.

When a couple disagrees on the disposition of embryos, one party's right to reproduce clashes with the other party's right to not reproduce. How is this conflict resolved?

Davis v. Davis

This is the first American case to consider the status of frozen embryos. In Davis v. Davis, the father wanted the frozen embryos destroyed, while the mother wanted to donate the embryo.

The Tennessee Supreme Court ruled that embryos are neither persons nor property. To make its decision, the court balanced the father's right to avoid parenthood with the mother's interest in donating. The court found that the burden on the father was more significant than on the mother. So, the court ruled for the father and ordered the embryos destroyed.

Other Interesting Issues

Disputes over embryos bring up a host of other issues. Let us assume that the court grants Loeb custody of the eggs, and he has the eggs implanted in a surrogate. Will Vergara have to pay child support for the children? Will she have parental rights? Can she get custody of the children?

With the law still so vague on this issue, we will eagerly await the court's decision on this case.

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