Here's why Sofia Vergara's ex-fiancé probably won't win the embryo war

Sofia Vergara’s ex-fiancé is more than determined to use the two frozen embryos he and the actress created when they were together to try to have a baby.

Last month, the ex, Nick Loeb, sued the Modern Family star to prevent her from destroying the embryos, and on Wednesday, he penned a New York Times op-ed outlining his religious motivations for wanting to use them to become a parent.

First, the quick facts of the case

If you haven’t been following the brouhaha until now, here’s what you need to know.

Loeb and Vergara were engaged. They twice tried to have a baby via IVF and a surrogate, but it didn’t work out. So in 2013, they created two more embryos (both female) at the ART Center to try again. As California law and the center requires, they signed a contract stipulating how the embryos would be handled. Then they broke up. Vergara is now engaged to actor Joe Manganiello, and Loeb says he wants to use the frozen embryos to have a baby without her. Vergara says hell no.

What is Loeb’s argument?

Loeb’s main argument is that the contract he signed with Vergara was not in the presence of a lawyer; that he signed it under duress; and most importantly, that it only covered what to do with the frozen embryos in the case of death, but not in the case of a breakup—which, he argues, it should have.

He cites a California law stipulating that certain scenarios should be accounted for in these agreements, including the death of one partner, death of both partners, divorce or separation, and abandonment.

Loeb wants a court to turn the embryos over to him, based on a failure of the contract to specify terms of a breakup, and based on previous cases in which agreements like his were overturned.

Does Loeb stand a chance of winning?

Loeb appears to be fighting an uphill battle. The contract doesn’t just outline what to do in case of death, it also includes all-encompassing provisions (which a breakup could easily fall under).

Loeb does mention one of these clauses in his New York Times piece (but not in his suit)—that both parties must consent to make a baby—but skirts around some of the other broader clauses, which, when combined with the consent clause, make his case much weaker.

Not to mention, the California law he’s invoking may not even account for non-legal separations. Steve Klein, a San Diego attorney who specializes in reproductive law, told Fusion in an email: “I believe that the use of the word ‘separation’ references a legal separation (which involves the filing of court documents equivalent to a divorce but does not ask the court to enter a divorce).” Vergara and Loeb were never married.

What the contract reveals

Here are several key provisions from the contract (titled “Directive for partners regarding the storage and disposition of cryopreserved materials which may include embryos”). The document is dated November 16, 2013 and bears a witness signature. The contract was included in Loeb’s lawsuit.

As noted, one person can’t make a baby without the consent of the other:

“Any and all changes must be mutually agreed to between both named partners. One person cannot use the Cryopreserved Material to create a child (whether or not he or she intends to rear the child) without explicit written consent of the other person (either by notary or witnessed by ART physician staff member or ART staff). All changes must be in writing and signed by both parties. Unilateral changes cannot be honored by the center.”

The embryos will remain frozen forever unless both partners decide otherwise:

“Unless otherwise directed by both of us in writing in person at ART or by notarized letter, the center shall continue to store the Cryopreserved Material for an indefinite period of time.”

The embryos will be thawed (destroyed) if one or both partners die:

“In the event of death of either the Patient or partner the embryo’s disposition shall be as follows: thawed with no further action.” According to the contract thawed with no further action “will result in its permanent and irretrievable destruction.”

If no mutual decision can be made, the current agreement stands:

“In the event we cannot reach a mutual agreement with respect to the disposition of Cryopreserved Material the most recently executed directive in the medical records held by the center will govern the disposition of any Cryopreserved Material.”

Failure to make a mutual decision on use and disposition of the frozen embryos can result in abandonment.

“In addition to non-payment of storage fees, failure to make a mutual decision about continued storage, use and disposition of Cryopreserved materials and to notify the Center of the decision by providing them with a certified copy of this executed document will result in abandonment … all authority and responsibility shall pass to the Center … the Center shall have the authority to dispose of or use Cryopreserved Material.”

Anything that was unclear in the contract should have been brought up before signing:

“We have read this document carefully and know we should ask questions about anything that is unclear before we decide whether to be participants in this procedure.”

Loeb clearly doesn’t have much of a case. “If they have a contract deciding the issue before the embryos are created some courts (but not all) will enforce it,” said Charles Kindregan, a law professor at Suffolk University who has written extensively on these types of cases.

Even if the contract is not upheld, “I think the court is unlikely to award either party the embryos in this case,” Kindregan said.

Taryn Hillin is Fusion’s love and sex writer, with a large focus on the science of relationships. She also loves dogs, Bourbon barrel-aged beers and popcorn — not necessarily in that order.