OPINION

Opinion: Nick Loeb’s position on embryos is supported neither by facts nor law

ARLINGTON, TX - APRIL 19:  Actress Sofia Vergara  attends the 50th Academy Of Country Music Awards at AT&T Stadium on April 19, 2015 in Arlington, Texas.  (Photo by Jason Merritt/Getty Images)

ARLINGTON, TX - APRIL 19: Actress Sofia Vergara attends the 50th Academy Of Country Music Awards at AT&T Stadium on April 19, 2015 in Arlington, Texas. (Photo by Jason Merritt/Getty Images)  (2015 Getty Images)

Call it embryo-gate. Last week, businessman Nick Loeb took to the New York Times to air the dirty laundry between himself and his former fiancée, Sofia Vergara. Loeb and the “Modern Family” star are fighting over the fate of two frozen embryos they created using in vitro fertilization. He has sued for full custody of the embryos, while she wants to keep them frozen. “Does one person’s desire to avoid biological parenthood (free of any legal obligations),” Loeb writes, “outweigh another’s religious beliefs in the sanctity of life and desire to be a parent?”

What’s really going on is that Loeb is deliberately embarrassing Vergara, who happens to be the highest-paid actor on television. Consider that his op-ed appeared on the same day that her latest film premiered in Hollywood.

- Raúl A. Reyes

In this case, the answer is Yes. While embryonic custody cases raise legitimate issues of religion, medicine, and parenthood, Loeb’s position is supported neither by facts nor law. The real question is why one of the world’s most influential papers would give him a platform for bullying Vergara. 

In his op-ed, Loeb does a good job of explaining why his case lacks merit. When he and Vergara agreed to try in vitro fertilization, he writes, “We signed a form stating that any embryos created through the process could be brought to term only with both parties’ consent.”  Loeb argues that since the form did not specify what would happen if the couple separated, the agreement should be voided. But the intent of the document that Loeb and Vergara signed was clear: that both parties had to agree if the embryos were to be brought to term. Even if the document were flawed, a logical extrapolation of the arrangement would suggest that its principles still apply if Loeb and Vergara broke up.

Because in vitro fertilization and cryopreservation are new aspects of medical science, there is not a great deal of law on the books about such procedures. Yet courts have generally taken the stance that a person’s interest in not being a parent outweighs another person’s interest in becoming one. In the most famous frozen embryos case, Davis v. Davis (1992), the Tennessee Supreme Court found that a divorced woman would be entitled to the embryos that she had frozen with her ex-husband only if she had no other way of reproducing. Here, that principle would apply in Vergara’s favor, as Loeb (age 39) is free to have children with another woman, or to pursue in vitro fertilization with another woman. 

In his Times piece, Loeb makes a play towards enlisting support from the pro-life movement by noting his Catholic faith and his deep desire to become a father. However, the Roman Catholic Church actually forbids in vitro fertilization, along with all other assisted reproductive methods, as “contrary to the dignity and equality that must be common to parent and children.”  Loeb also writes about his “yearning for the type of family based on the images one might see in a Norman Rockwell painting,” and how he is afraid that his father might not live to see grandchildren. These emotional appeals are irrelevant. And if Loeb wants kids so badly, he could always adopt. 

Besides, common sense tells us that Vergara should not be forced into being the biological mother of Loeb’s children. They are no longer a couple. She has a new fiancée. If Loeb were allowed to bring their embryos to term, he could potentially sue her in the future for child support. 

What’s really going on is that Loeb is deliberately embarrassing Vergara, who happens to be the highest-paid actor on television. Consider that his op-ed appeared on the same day that her latest film premiered in Hollywood. Or how he implies that she is not interested in motherhood, although Vergara has a grown son from a previous marriage. This entire controversy is a private matter that Loeb has shamefully chosen to make public. 

Equally shameful is the decision by the Times to run his op-ed. Aside from his relationship with Vergara, Loeb is best known as the founder of the Crunchy Condiment Company. With all the news in the world, from Nepal to Baltimore, the Times gives the founder of the Crunchy Condiment Company a forum for his views on reproductive rights? No wonder so many people complained to the paper; their public editor noted the “vehemence of reader criticism.” Numerous media outlets have rightfully criticized the Times’ judgment as well.

Although there are compelling legal questions surrounding embryonic science, they are not present in this case. Loeb’s op-ed only succeeds in making him look like a creepy, jilted ex – and the Times like a sensationalistic tabloid.

Raul A. Reyes is an attorney and columnist in New York City.

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