Persons or property? Celebrity embryo lawsuit escalates

Actress Sofia Vergara is attempting to stop her former fiancé from gaining custody of the couple’s frozen embryos. The case just gets uglier from there.

While much of the media ridiculed businessman Nick Loeb when he filed a lawsuit last year to prevent his former fiancée, TV star Sofia Vergara, from destroying the frozen embryos they created together in 2013, sentiment may shift following a disturbing development in the case. In an attempt to show that Loeb is dishonestly claiming to be “pro-life” in his quest to gain custody of the embryonic children the couple created together, Vegara’s attorneys have petitioned a California court to force Loeb to disclose the names of two women who underwent abortions after he impregnated them more than 20 years ago. 

A California judge overseeing the case ruled that Loeb must reveal the identities of the two women, and agreed to allow Vergara’s lawyers to depose them in an effort to determine whether Loeb encouraged them to abort the unborn children they were carrying. Loeb’s attorneys filed an emergency appeal of the ruling, claiming that women who have chosen to terminate their pregnancies should be protected by federal and state laws from revealing their identities. That appeal was denied. 

The judge’s ruling is startling considering the fact that the Supreme Court’s 1973 decision in Roe v. Wade rested on the right to privacy. The court determined that this right—guaranteed under the due process clause of the 14th Amendment—extended to a woman’s decision to have an abortion. Beyond Roe, the 1996 passage of the Health Insurance Portability and Accountability Act (HIPPA) provided additional federal privacy protections. In the wake of the scandal over the trafficking in the organs and fetal tissue of unborn children by Planned Parenthood, the abortion provider cited the potential violations of patient privacy to bar filming by undercover “stings.” To protect the privacy of health care providers and women seeking abortions, in August of this year the California legislature passed AB 1671, backed by Planned Parenthood, which would criminalize the publication of confidential interactions with state licensed medical personnel, including abortionists and abortion clinic staff.

Curiously, Planned Parenthood, NARAL, and other pro-choice organizations have been silent on the Loeb-Vergara lawsuit—leaving the two women who chose to legally terminate their pregnancies more than two decades ago vulnerable to serious violations of patient confidentiality simply because Ms. Vergara’s attorneys want to try to show that Mr. Loeb may have been “pro-choice” two decades ago.   

It is likely that Ms. Vergara’s attorneys are putting pressure on Mr. Loeb because they know that as the father of the two female embryos, Mr. Loeb has a strong custody case. In the initial court filing, Mr. Loeb maintained that he frequently expressed his desire to have a family and made plans to start a family immediately with Ms. Vergara. According to the court filing, Mr. Loeb disclosed to Ms. Vergara that he is pro-life and believes that “life begins at the moment an egg is fertilized by a sperm.” Mr. Loeb, who is not Catholic, claims to have expressed these views to Ms. Vergara, who he alleges stated that she is “a devout Catholic and therefore believes that life begins at conception and should not be destroyed.”  

Mr. Loeb and Ms. Vergara created these embryos together with the intention of bringing them into the world, and Mr. Loeb is simply asking for Ms. Vergara to allow him to fulfill the obligation he believes he has to these two embryos. It seems that the State of California shares that same belief. The California legislature has recognized that unborn children have potential interests and, therefore enacted California Civil Code 43.1, which states that “ a child conceived but not yet born is deemed an existing person, so far as necessary for the child’s interests in the event of the child’s subsequent birth.”

Despite a history of permissive abortion laws beginning in the late 1960s, the State of California has a long history of protecting the unborn, dating back to the late 19th century. CA Section 340.4, enacted in 1992, deals with care for the unborn child, and continued in substance former Civil Code Section 29, which was enacted by the state legislature in 1872. According to an unrelated case in which Section 340.4 was cited in May 2016, “Section 340.4 has a lengthy legislative bloodline. As enacted in 1872, former Civil Code section 29 provided: ‘A child conceived but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth.”  

Beyond California civil law, the US Supreme Court recognized in 1989, in Webster v. Reproductive Health Services, that the state has an important and legitimate interest in the “potentiality of human life.” Webster held that “the state’s interest in protecting potential human life exists and is compelling even before the viability of the potential human life.”

In “Begotten Not Made: A Catholic View of Reproductive Technology,” John Haas of the National Catholic Bioethics Center points out that the Catholic Church is clear that some of the technologies now used in the assisted reproduction industry have “profound moral implications.” In 1987, the Vatican’s Congregation for the Doctrine of the Faith issued Donum Vitae (“Gift of Life”), which teaches that if a given medical intervention helps or assists the marriage act to achieve pregnancy, it may be considered moral; if the intervention replaces the marriage act in order to engender life, it is not. The choice to use assisted reproductive techniques, including in vitro fertilization and surrogacy, was never a moral choice by Loeb and Vergara. But now that the embryos have been created, it is not clear what must be done; while the Congregation for the Doctrine of the faith addressed issues surrounding reproductive technologies in the 2008 document Dignitatis Personae, it did not definitively state what a morally permissible course of action would be with regard to an already-frozen embryonic child.

Ms. Vergara cannot claim dominion over the fate of the two embryos that the State of California appears to recognize as “existing persons.” And, for the first time in history with regard to embryonic children, Mr. Loeb’s 2015 filing in California Superior Court simply asks the court to consider the state’s interest in potential life. His 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.” Mr. Loeb has said that he will go to jail rather than disclose the names of his former girlfriends, and it is likely that Ms. Vergara’s demand to identify and depose two women who chose to legally terminate their pregnancies two decades ago will be decried. The courts will make the final decision on the custody of the frozen embryos in January. But, as Webster has held, the state’s interest in protecting potential human life exists and is compelling.

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About Anne Hendershott 101 Articles
Anne Hendershott is Professor of Sociology and Director of the Veritas Center for Ethics in Public Life at Franciscan University in Steubenville, Ohio.  She is the author of The Politics of Envy (Sophia Books, 2020)