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 / Updated  / Source: NBC News
By Arthur Caplan

Nick Loeb and Sofia Vergara once were a huge item. Today, they are back in the tabloid press because of a dispute over frozen, human embryos.

The 42-year-old actress and star of "Modern Family," one of the top-earning women in Hollywood, announced her engagement to the wealthy, 40-year old businessman in 2012. Last May, Vergara announced they had split amid a host of abuse allegations.

Their squabble now has grown to include Loeb suing Vergara in California to prevent her from destroying two frozen female embryos, which court documents say they created using in vitro fertilization in November 2013.

Let's ignore the Hollywood circus and just lay out what I think will happen to the embryos — and why.

Will the embryos be destroyed if Vergara wants them to be?

Not a chance.

No court will permit embryo destruction unless both parties agree to it.

Will the embryos be treated as people by California courts?

Absolutely not.

What ever the debates about life beginning at conception, the law does not treat embryos as full-fledged people. Corporations yes, but not embryos. American law tends to see the embryos more akin to property. In any event, there is no reason to resolve their moral status because there are no good reasons to destroy them, as long as one party wants them kept frozen.

Will Loeb ever be able to use the embryos to try and have children?

Not unless Vergara agrees.

Courts don't force people to parent against their will. So Loeb will win the right to keep the embryos frozen. But unless he changes Vergara's mind, that is where they will stay.

Do clinics destroy embryos?

Yes, they do. If you don't pay the annual fee to keep embryos frozen, many clinics defrost and, thus, destroy them.

Should Vergara think hard about destroying the embryos?

Yes, she should.

Maybe she will get back together with Loeb, who with this lawsuit seems to be saying he still has a thing for her. But because she is 42, her ability to conceive with any future partner using her eggs is very small. Those embryos may be her best bet if Loeb would let her use them.

Should this ethical mess ever have happened?


Infertility clinics should review all possibilities when embryos are made — death, divorce, dementia, and disasters, and they should make clear who is going to make decisions should any of those things actually happen.

Did the clinic do that with Sofia and Nick? I hope so but we will soon find out if the lawsuit goes to court. As they say in show biz, stay tuned.