Nick Loeb tries a new approach to unfreeze embryos.

In the latest skirmish between Nick Loeb, millionaire businessman, actor, and politician and his former partner Sophia Vergara, millionaire star of the TV show Modern Families, new weapons have been deployed.

Loeb and Vergara are fighting over two frozen embryos which they produced while living as a couple with the intention of implanting them in a surrogate mother. According to an agreement that they both signed, Vergara’s permission is needed for the implantation. Now that they have split up, she wants to keep the embryos frozen and he wants to give them life so that he can raise them as his daughters.

Loeb’s first legal strategy was to have the agreement voided. This failed. Now he wants the State of California to grant him custody of the embryos. Here is what his lawyers told the court:

“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.”

His lawyers have also found flaws in directions to the IVF clinic about how the embryos should be treated. It now appears that this document was not a “contract” but just a “form directive” created by the IVF clinic.

The battle continues. 

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Michael Cook

Michael Cook edits BioEdge, a bioethics newsletter, and MercatorNet, an on-line magazine whose focus is human dignity. He writes from Sydney, Australia.

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