Sofia Vergara is being sued on behalf of her own embryos, who are demanding that they be brought to life….

As of December 6, 2016, Sofia Vergara is being sued by her own embryos in the state of Louisiana. The embryos, named “Emma” and “Isabella” in the complaint (which is odd, because the second embryo doesn’t look like an “Isabella” at all, more of a “24168B” if you ask me), are demanding that they be brought to life and be able to enjoy a trust fund set up for their benefit.   If you missed my last newsletter that explains the events that transpired to get us to where we are, click here.

Here is a quick recap:

Vergara and Loeb dated between 2010 and 2013 and went through in vitro fertilization together in order to have a child. After failing to conceive, the two stopped trying and parted ways. They have two remaining embryos cryopreserved. Before creating the embryos, both Vergara and Loeb signed a contract agreeing that neither of them could use the embryos without the other’s consent. And further agreeing that upon one or both of their deaths, the embryos would be destroyed.

Despite the agreement that Loeb not be able to use the embryos without Vergara’s consent (or vice versa), Loeb brought suit in California, where the embryos were created and are currently cryopreserved. The case slowly worked its way through the system, but took an interesting turn when Vergara’s attorneys demanded to know the identity of two women who aborted pregnancies that were conceived with Loeb. You see Loeb claimed that his need to control the embryos and bring them to life are based on his pro-life beliefs, and not a desire for publicity or jealousy (Vergara has since married Joe Manganiello), as claimed by Vergara’s attorneys. Not willing to reveal the names of the past girlfriends, and not wanting to be held in contempt of court and possibly jail time, Loeb voluntarily dismissed his case.

But, if you can’t win in California, I guess you can try in Louisiana? 

Now, a party, not directly related to either of them (that we know of, but as I mentioned I wouldn’t rule out Loeb’s involvement), has filed a lawsuit in Louisiana to have the embryos implanted in a surrogate and brought to term.  The Lawsuit purports to be brought by the embryos themselves.  The petition lists three plaintiffs: two embryos, one named Isabella and one named Emma, and Mr. James Charbonnet, a New Orleans resident with no clear ties to Vergara or Loeb.    The new lawsuit argues that the embryos are being deprived of their inheritance from a trust by not being born because the trust was created to provide for their (the embryos’) health, education, maintenance, and support.  The Louisiana case doesn’t name Loeb himself but asks that the embryos be transferred to Loeb so that they can be born and “receive their inheritance.”

Without getting into the highly politicized right-to-life/embryos are people or property, etc… arguments, the most glaring problem with this lawsuit is jurisdiction.  To put it in non-legalese, what right does the state of Louisiana have to hear this case against Vergara when she or her embryos have essentially no ties to the State?

Sure, this tactic of using the State of Louisiana makes sense as the ideal venue to try to use embryos to bring a case, thanks to being the only state to declare embryos “juridical persons” and to give embryos the right to go to court.  Louisiana also doesn’t allow the destruction of frozen embryos.  But until now, we’ve never seen an embryo try to sue anyone or anyone bring a lawsuit on their behalf.   Loeb’s attorneys claim to have “strong jurisdictional arguments,” but it seems unlikely that the court will agree. While Loeb has some ties to Louisiana and spent some time there, neither Vergara, nor Loeb, nor the embryos reside in the state. I’ve even read very tenuous “jurisdictional analysis” regarding how the embryos were “created” in Louisiana because Loeb and Vergara spent time there during their relationship.  So by the sheer fact that Vergara was a woman still of child bearing age visiting a State, this would provide the “minimum contacts” such that it would subject Vergara to being dragged into that State for this lawsuit… (I think my Constitutional Law professor is having a meltdown as he reads this).

Another problem the Loeb side is going to encounter is trust law itself.  Sure, the trustee of the trust does reside in Louisiana, but so what? We are still looking at a revocable self-settled instrument here. Title to the assets and fiduciary responsibility don’t actually pass to the trustee until it becomes irrevocable and upon the creation of at least one named beneficiary.     If the embryos remain frozen, there are no beneficiaries and the trust has no responsibilities to fight for.   In effect, the current lawsuit boils down to the trust petitioning to make sure the embryos come to term, at which point the trust will have someone to pay and the duty to pay them.  Until that happens, the trust has to claim that Vergara is interfering with the inheritance rights of inheritors who do not currently exist.   This is like the trustee of a revocable living trust hoping the grantor will die so the work of distributing the assets can start.

The trust is really in the circular position of asking the court to create the circumstances that would actually form it as an independent entity with an interest in protecting its ability to distribute to what would then become beneficiaries – crazy! But then again, when I was a mere first year attorney I distinctly remember the managing partner of the firm I worked for telling me, after vocalizing my disagreement with a similar strategy in a case:  “circular reasoning is how sometimes new case law is made!”  It didn’t work then, and I don’t think it will work now.  I will keep you updated.