Loeb wants custody of the embryos, but Vergara isn’t prepared to give it to him — even though he “would take on full parenting responsibilities,” he wrote in the piece, headlined “Our Frozen Embryos Have a Right to Live.”
“Why not just move on and have a family of your own?” Loeb wrote. “I have every intention of doing so. But that doesn’t mean I should let the two lives I have already created be destroyed or sit in a freezer until the end of time.”
Loeb’s lawsuit and his essay cut to the heart of some of the most controversial questions in American jurisprudence, philosophy and theology. Not least among them: When does life begin, and who has the right to decide whether it can be terminated?
“When we create embryos for the purpose of life, should we not define them as life, rather than as property?” Loeb wrote. “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?”
Vergara’s camp said that the actress doesn’t wish the embryos to be destroyed.
“No unilateral action can be taken with regard to the embryos unless both parties consent,” Vergara’s attorney Fred Silberberg told People. “Vergara has never suggested that she wished to have the embryos destroyed. She has always maintained that they be kept frozen, a fact of which Loeb and his counsel have always been aware, despite Loeb’s statements to the contrary.”
However, frozen embryos can’t be stored forever. As the New York Times put it in 2008: “Embryos can remain viable for a decade or more if they are frozen properly but not all of them survive when they are thawed.”
As if this slowly ticking time-bomb wasn’t enough pressure, both Loeb and Vergara bring considerable baggage to the table when it comes to deciding whether — and with whom — to have children. In his opinion piece, Loeb, after explaining that his parents were largely absent from his childhood, went on to explain why it is so important for him to become a dad.
“When I was in my 20s, I had a girlfriend who had an abortion, and the decision was entirely out of my hands,” he wrote. “Ever since, I have dreamed about a boy at the age he would be now.”
Loeb, now 39, explained that he and his ex-wife attempted to have children through in vitro fertilization but failed, making him “feel, more than ever, that the ability to create life was special.”
After he met Vergara and the couple got engaged in 2012, Loeb “began to push” for children. Vergara wanted to use a surrogate, but two initial attempts did not work. After the two surviving embryos were made, “it became clear once more that parenthood was much less urgent for her than it was for me,” Loeb wrote. He then gave the actress an “ultimatum” about having kids, which resulted in their split.
Loeb also detailed other reasons for his desire to have children: The nanny who raised him recently died, his father is aging and he had a “terrible car accident” in 2010.
“For six months, I couldn’t walk on my own,” he wrote. “I saw how life could change in the blink of an eye.”
Vergara, meanwhile, has lived a life worthy of the telenovelas in which she sometimes appeared. Born in Colombia, she was a mom at 20; her brother — who may have been having an affair with the girlfriend of a mob boss — was killed as part of a kidnapping plot; and she is a cancer survivor.
“My life as a mother has been hard, but not a nightmare,” Vergara, now 42, once said. “I do like all working moms do. No life is perfect. What I do, it’s part of life.”
At present, that life may not include having another child — or, at least, having a child with Loeb. Vergara is engaged to “True Blood”/”Magic Mike” hunk Joe Manganiello. But Loeb said he will take on the costs of storing the embryos — not to mention the responsibility of raising “our girls,” as he put it.
“I take the responsibility and obligation of being a parent very seriously,” he wrote. “This is not just about saving lives; it is also about being pro-parent.”
Of course, Vergara and Loeb’s embryo problem isn’t unique in the annals of parenting. Loeb said his attorneys had found 10 cases in which a parent tried to have “a fertilized, frozen embryo taken to term against the wishes of an opposing parent.” Eight times, the parent failed; two times, custody was awarded to the mother over the father’s objection. Both women were cancer survivors, and the embryos their “last chance” to have a child.
As legal analysts parse this case, they may be writing paragraphs that, as often as not, end with question marks.
“The more interesting legal questions will be whether allowing these embryos to remain frozen indefinitely, and eventually destroyed, raise any constitutional issues, such as the right not to be deprived of life, liberty, or property without due process of the law,” Forbes wrote earlier this month. “Does that apply to frozen embryos created under these circumstances? How about the rights of a person who wants to be a father?”