Sofia Vergara’s Ex Makes Passionate Plea for Frozen Embryos’ ‘Right to Live’

Nick Loeb has filed a lawsuit against Sofia Vergara, hoping to gain custody of the embryos the two created in happier times. The two are seen here arriving at the InStyle/WB Golden Globes party. (Photo: Nate Beckett/Splash News/Corbis)

Should a 40-something man with a burning desire to be a dad be granted custody of the two embryos he created with his former fiancée, who no longer wants to pursue parenthood with him?

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That was the question posed Thursday on the op-ed page of The New York Times. Nick Loeb, ex-fiancé of actress Sofia Vergara, published an opinion piece that makes the case for why he’s suing the “Modern Family” actress.

In the article, Loeb explains why he should be given the female embryos — which are currently on ice in a California fertility clinic — and have them implanted in a surrogate who can bring them into the world as babies.

Here’s the backstory on the increasingly messy legal battle between the former couple: In 2013, Loeb and Vergara decided to become parents together. They underwent fertility treatments that resulted in the embryos created from Loeb’s sperm and Vergara’s eggs.

The plan, according to Loeb, was that a surrogate would carry the embryos for the couple. Once they broke up, however, Vergara, 42, backed out of motherhood. Now, Loeb wants to stick to the plan and become a father on his own.

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A few months after splitting, “I asked her to let me have the embryos, offering to pay for all expenses to carry our girls to term and raise them,” wrote Loeb. “If she did not wish to share custody, I would take on full parenting responsibilities and agree to have her declared an egg donor.”

Vergara said no. “Her lawyer, Fred Silberberg, has told reporters that she wants to keep the embryos ‘frozen indefinitely,’” he continued. “In my view, keeping them frozen forever is tantamount to killing them.”

In his piece, Loeb raises important points, challenging the legal precedent that considers frozen embryos akin to property. He also questions why, in similar cases of separated couples fighting over frozen embryos, courts have almost always sided with the former partner who doesn’t want to be a parent, rather than granting the wishes of the partner who does.

“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?”

But fertility specialists and bioethicists aren’t convinced he has much of a case. And if a court takes his side, they say, it could set a troubling precedent.

“The notion that you can force a woman to be a mother against her wishes is an abhorrent use of the court system,” Josephine Johnston, director of research at the Hastings Center, a research institution that focuses on bioethics, tells Yahoo Parenting.

Even if Loeb promises his ex that she doesn’t have to be a legal parent and can be considered an egg donor, free of parental responsibilities, that doesn’t mean the courts will agree, says Johnson. If down the road Loeb decides to sue Vergara for child support, she could theoretically be responsible, she says.

As for the idea that embryos should not be considered property but human life, Johnston says courts do recognize embryos as life — but they don’t give embryos the legal standing of a human beings. “These are not babies,” she says.

When cases over frozen embryos have gone before judges, which they’re doing with increasing frequency, state courts have generally looked at the contract fertility centers mandated both partners to sign before embarking on fertility treatments. “The contracts stipulate what will happen to any embryos that the couple no longer needs or wants, and they also are supposed to address what to do if the couple separates or one partner dies,” Dr. Elizabeth Fino, a reproductive endocrinologist at NYU Langone Medical Center, tells Yahoo Parenting.

In his op-ed piece, Loeb says the couple did sign a contract. “We signed a form stating that any embryos created through the process could be brought to term only with both parties’ consent. The form did not specify — as California law requires — what would happen if we separated. I am asking to have it voided.”

Fino isn’t sure that’s likely to happen. “I don’t think he has a case; they both have an agreement, and he needs to stick with it,” she says. “If you’re not comfortable with embryos possibly being discarded, you need to reconsider if freezing embryos is right for you.”

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