When I did two rounds of IVF in 2010, I had to sit down with a representative of the agency storing my frozen embryos and sign legal documents regarding what I would want to happen to those embryos were I to die before I could use them. The options were basically to destroy them or donate them (either to research or another infertile woman).
As a woman who is pro-choice, but who has always personally felt that life begins at conception, I decided I would want to donate any unused embryos to another woman or couple struggling with infertility.
My married friends who went through the same process additionally had to choose what they would want to happen to their embryos if just one of them were to die, or if they were to split up. The options were either to donate, destroy or allow one or both parties to proceed with transferring the embryos in an attempt to have a baby.
When it comes to reproductive technology, there are reasons for making these choices before that worst-case scenario happens. In the case of death, it’s essentially like any living will—you’re making your wishes known prior to passing. And in the case of divorce, it’s like laying those rules out while all parties are coming to the table with a reasonable head. So that both can agree upon what would happen well in advance, saving legal battles down the road.
Or at least, that’s how it’s supposed to work.
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Sofia Vergara, the popular "Modern Family" actress who now calls hunky Joe Manganiello her husband, did everything right when she went down that same road with her then-fiancé Nick Loeb in 2013. They agreed at the time that the unused embryos could not be used without the consent of both parties, and both signed contracts to that effect. If either of them died, the embryos would be thawed, and thus destroyed.
Let there be no question that if (this goes to court), the ripple effects could be catastrophic for women’s rights.
Unfortunately, when the couple went through what seems to be a particularly nasty split, Loeb decided to sue Sofia and essentially held his much more successful ex hostage in the process. In April 2015, Loeb wrote an op-ed in the New York Times, arguing keeping the embryos frozen was "tantamount to killing them."
The thing is, these agreements are made ahead of time for a reason. But the courts don’t necessarily know how to respond when one party changes his or her mind. Attorney Susan L. Pollet explains why:
“The main issues that courts have grappled with are whether a court should enforce a couple’s pre-conception agreement; whether a person can be forced to be a parent against his or her wishes; and whether one party’s interest in becoming a parent outweighs the other party’s interest in not becoming a parent.”
Vergara’s argument for wanting the embryos to be kept frozen was not that she no longer wanted to be a parent, or that she wanted to hurt her ex. Instead, she’s stated, “A child needs a loving relationship of parents who get along, who don't hate each other. I wouldn't imagine (bringing kids into the world) who are already set up everything wrong for them. It would be so selfish."
It seemed the court was in agreement with her, especially in light of information that Loeb has two ex girlfriends who have had abortions in the past, thereby having had the opportunity to be a father previously, and supposedly not fighting those women in their decisions to terminate. The court ordered he release the names of those women so that they could be interviewed to find out whether or not he had encouraged those abortions—Loeb refused.
But just as it seemed Vergara was about to win her case, Loeb has thrown a Hail Mary. On Tuesday, December 6th, E! News obtained documents that show a right-to-life lawsuit has been filed against Vergara on behalf of her unused embryos. In the suit, the embryos are listed as plaintiffs named “Emma” and “Isabella.”
Vergara’s lawyer, Fred Silberberg, responded to the lawsuit reports in a statement to US Weekly saying, "If these reports are true, this latest maneuver is nothing more than another attempt on the part of Loeb to keep himself in the public eye by keeping himself linked to Ms. Vergara. The media reports contend that Mr. Loeb has caused a lawsuit to be initiated claiming that the pre-embryos—which are not embryos, but rather frozen fertilized ova, have been given names by him and have a right to live."
If allowed to proceed, this case will be unlike any other before it. It would be the first time an embryo has been given the opportunity to sue for the right-to-life.
It could potentially change everything in the world of fertility treatments. It could also potentially have a massive effect on abortion law.
Whether or not this case has any legs is still yet to be seen, but as an outsider looking in, I have to admit the potential makes me extremely uncomfortable. Particularly because as the details have played out, it has always seemed to me like Loeb is more of a vengeful ex than a man truly interested in parenting these children. He also has a fair amount to gain financially if those embryos were brought to life. It's hard to ignore that Vergara could owe him child support and not the other way around.
The whole thing makes me grateful I went through infertility alone, because I honestly cannot imagine someone else having this power over me.
On top of that, this is a man who has potentially supported ex-girlfriends through abortions in the past. But he now seems to be basking in the attention and adulation of the right-to-life crowd, holding himself up as a hero to their cause when the truth is, it’s not a cause he ever seemed to care much about before.
The whole thing makes me grateful I went through infertility alone, because I honestly cannot imagine someone else having this power over me, my genetic material and my emotions in the midst of what appears to be a particularly nasty divorce.
This is why these agreements are made ahead of time. This is why it’s important for a couple to be on the same page about what would happen to their embryos in light of any number of circumstances before those circumstances play out.
If this was something that actually mattered to Nick Loeb, he could have refused to sign those papers years ago. He could have put his foot down and refused to proceed until he and Vergara were on the same page. But he didn’t. And now he is dragging an issue that was already decided and agreed upon through the court system, culminating in this final, unprecedented move.
Will “Emma” and “Isabella” be given their day in court? That remains to be seen. But let there be no question that if they are, the ripple effects could be catastrophic for women’s rights.
Because if your embryo has legal rights, we’re not all that far off from someone being able to dictate each and every thing you do with your body from the moment that second line appears on a pregnancy test. And no matter how pro-life you may be, that potential should scare every woman.