What Can We Learn From Sofia Vergara?

It’s been SEVEN YEARS since Sofia Vergara and Nick Loeb broke up. We can imagine she’s happily moved on with the Magic Mike star, Joe Manganiello (mmmmmmm), but Loeb is not out of the picture just yet.

Sofia and Nick split up in 2014. When they split, they had two frozen embryos, but the terms of their arrangement required consent from both of them before they could be brought to term. Since the breakup, Loeb has been fighting Vergara to have those embryos brought to term with a surrogate. After losing in the first California action, Loeb and his attorney got creative.

Loeb named the embryos (Emma and Isabella) and established a TRUST FOR THE EMBRYOS in Louisiana, a jurisdiction known for recognizing embryos as people, with the right to sue and be sued. Shortly after, Vergara was sued by her two frozen embryos. The lawsuit alleged that “Emma and Isabella seek that they be entrusted to their natural father Loeb, who is willing and desirous that they be born.” This reminds me of an Ally McBeal episode (yes, I’m old).

The Louisiana Court was having none of it, and ruled against Loeb. The Court held that they don’t have jurisdiction. Loeb did not live in Louisiana, “is not domiciled in, does not maintain a residence in, and does not have the intent to be domiciled or a resident of any parish in the State of Louisiana,” held the Court.

Not one to give up, Loeb filed again in Louisiana, this time in FEDERAL court. That case was dismissed in a scathing 95-page opinion. The court stated, “it is clear that Mr. Loeb blatantly engaged in forum shopping …Their behavior brings disrepute to and makes a mockery of the Louisiana legal system and the bar and is abhorrent.” Yikes!

So, what can we learn from this story? What would happen in Loeb would have forum shopped and selected Florida?

Loeb’s trust would be problematic in Florida as transferring the embryos into the trust (funding the trust with the embryos) would require Vergara’s approval, and I doubt that she would consent. As avid readers of the blog, we know that a trust only controls what it controls. The embryos would need to be part of the trust for the trust terms to control.

But the main question is whether Floridian embryos have legal status. Florida code does not treat embryos as individuals with rights. Further, in Florida most divorce proceedings address the issue within the marital settlement agreement. Since Vergara and Loeb were never married, the didn’t have the luxury of attorneys involved in their separation to address the embryos.

And here’s our lesson: It’s important to get an attorney familiar with surrogacy law for advice prior to embarking on the embryo journey. This other lesson is, be very, very, very careful when selecting an IVF partner.

As to Vergara and Loeb, recently, a California Judge ruled in Vergara’s favor and sanctioned Loeb for his antics. This latest ruling is a good thing for Vergara, but it’s hard to imagine that it will be the end. Loeb still has an appeal pending in the federal Louisiana case and, given his perseverance, the battle may be far from over.