Sofia Vergara, of Modern Family fame, recently married handsome man Joe Manganiello. You may know him from Magic Mike and Magic Mike XXL.

What you may not know is that she has been involved in a lawsuit with her previous boyfriend, Nick Loeb, over the rights to frozen embryos they created when they were still a couple.

Vergara fought the lawsuit by pointing to clauses in the in vitro contract that said neither party could use the embryos without the consent of the other party, and she also threatened to make Loeb reveal the names of his previous lovers who supposedly had abortions after he impregnated them. Loeb dropped the California suit.

But a new law suit has been filed this week by the embryos themselves! Or rather, through a trustee on behalf of the embryos. Loeb set up a trust in Louisiana for the benefit of the embryos and the lawsuit claims that by not being able to mature, the embryos are being deprived of life and their inheritance from the trust. Loeb has stated from the beginning that he wants to raise the babies (he has always wanted children and through various life circumstances has not the chance). He has named the embryos Emma and Isabella, and said that Vergara is welcome to terminate her rights in the embryos. In a 2015 NY Times Op-Ed, Loeb stated:

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? A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects? These are issues that, unlike abortion, have nothing to do with the rights over one’s own body, and everything to do with a parent’s right to protect the life of his or her unborn child.

Vergara will not agree because she says children should only be brought into the world if they have loving parents. 

“A child needs a loving relationship of parents who get along. Who don’t hate each other,” Vergara pointed out. “I wouldn’t imagine [bringing kids into the world] who are already set up [with] everything wrong for them. It would be so selfish.”

It is also kind of selfish to deprive a father of his children, but leaving that aside, the law has simply not kept pace with the science of human reproduction. The default argument for the right to abortion is based on the autonomy of the mother. The embryo/fetus/baby is subservient to that right, so the mother gets to make the call (to a point). In this case, the embryo is not dependent on the mother who doesn’t want it – it will be implanted in a surrogate – so there is no autonomy of the body argument. Perhaps this case, and how it is framed from the legal standpoint, could be the case that would cleanly challenge the basis of Roe v. Wade. Ironically, it is only because of science that this is a possibility!

The case is framed from the perspective of the child and does not have to balance the rights of the child against the privacy of the mother’s host body, where mostly the mother has continued to win. If the defense is brave, I would expect to see the legal challenge to be that embryos don’t have rights, but this will directly implicate the concept of when human life begins. Again, science!

The autonomy of the mother argument doesn’t dispel the notion that human life begins only at a certain point, it only states that until the life has progressed along “enough” it does not outweigh the interests of the mother. By removing the interests of the mother in her personal space, Vergara is left with what will have to be a very creative argument for defense. She can’t bring a defense of contract here because the embryos are not party to the contract; this is a separate assertion of legal rights. Interesting!

Added: If a court were to find an embryo had rights, then some reconciling of the rights of a frozen embryo and one located inside a woman’s body must be done. The frozen embryo cannot have more rights than one in the natural stages of development. The court would be forced to say every embryo has rights no matter where it is located or its stage of development, or every embryo only gains rights at a certain point. That will be a very hard point to determine, because, once again science! The point of viability keeps moving backwards, so that will never be a good marker again. IMO.