Here at the Law Blogger, we rarely peruse the pages of US Weekly for blog content, but the latest celebrity gossip combines cutting-edge legal issues with the lifestyles of the rich and famous in such a way that we couldn't resist digging deeper.

Actress Sophia Vergara, most famous for her role as Gloria on Modern Family, is the unwitting subject of international headlines concerning embryos she had stored during her relationship with Onion Crunch inventor Nick Loeb.

Loeb and Vergara split in May 2014, after reaching an agreement that her cryopreserved embryos, frozen during an attempt at in vitro fertilization, would remain in storage indefinitely. 

The cryopreserved embryos were to remain in a deep freeze unless and until the parties -Vergara and Loeb- entered into a written agreement directing some other disposition of the biological property. 

Since April 2015, the parties have been engaged in litigation over the fate of the two frozen embryos. At that time, Loeb filed a complaint in California and the parties remained embroiled in the lawsuit until just this month, when Loeb voluntarily dismissed the California lawsuit.

The following day, a 46-page complaint was filed in Jefferson Parish, Louisiana requesting that the two frozen embryos be released to him so that he can have them implanted in a surrogate.

Loeb's decision to dismiss the California case and re-file in Louisiana is a transparent attempt at "forum shopping". Louisiana has the strictest laws concerning human embryos in the country, and requires courts to make determinations regarding embryos in the best interests of the embryo.

The basic premise of the legal system is that a court must have proper jurisdiction over the parties to a case in order to grant any relief. The in vitro fertilization process took place in California, the embryos are stored in California, and Vergara lives in California. Loeb admits to residing in Florida, but claims that Louisiana should have jurisdiction.

Vergara's role on True Blood caused the parties to spend time in Louisiana during their relationship, as did Loeb's status as a Tulane University alumnus and reserve police officer in Plaquemines Parish. He further claims that Jefferson Parish has jurisdiction because the parties ended their relationship at the Louis Armstrong International Airport.

In the family law industry, interstate disputes over child custody and jurisdiction are governed by the Uniform Child Custody Jurisdiction and Enforcement Act. Under the standards of that act, California has clear jurisdiction over Louisiana.

Setting aside the jurisdictional issues with the Louisiana complaint, the legal team working for ART Reproductive Center, Inc., the Beverly Hills fertility clinic selected by Loeb and Vergara, anticipated these disputes and required all parties to sign documents indicating that future decisions concerning their embryos must be mutual.

While Loeb claims that he signed the agreement under duress, this blogger is skeptical that his claims of duress will hold up in court. The Louisiana Civil Code requires a person claiming that they signed a contract under duress to show a reasonable fear that they have been threatened with unjust injury. In determining whether a fear is reasonable, the court considers the age, health, disposition, and other circumstances of the party claiming to have signed under duress.

Loeb is a 41-year old business man worth over $15 million dollars with a platoon of lawyers on speed dial. He was educated at high-end college preparatory schools before enrolling at Tulane University, where he graduated with a degree in management and finance. It is difficult to imagine how he could be so intimidated by Vergara that he had no option but to sign a contract.

After all this, if Louisiana does order that the embryos be released to Loeb for implantation, it still must enforce the order in California. While the Full Faith and Credit Clause of the United States Constitution would make the Louisiana order valid in California, federal courts have been hesitant to enforce judgments from other states that conflict with the policy of the state resisting the order.

This blogger remains curious about the outcome of this interesting case. We here at the Law Blogger believe that Loeb's recent filing is nothing more than an attempt to remain in the public spotlight through his past connection to Vergara. 

June 2021 Update - A Los Angeles Superior Court Judge has granted Ms. Vergara a permanent injunction against Mr. Loeb; he cannot bring the frozen embryos to term without Sophia's express written consent.

Post #571

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In happier times, the Stratfords, Jude and Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane's eggs that had been fertilized by Jude's sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the now-divorced couple realized they had forgotten to address their frozen embryo in the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized and frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded that Jude held a "superior interest" in the embryo, and promulgated a thoroughly-researched opinion and order on this ground-breaking topic that has no precedent in Michigan's statutory or common law.

Judge Brown ruled that: "[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple."  Jayane appealed Brown's ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished and thus non-binding per curiam decision, holding that the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, and further held that the family court order was too vague relative to Father's right/duty to donate the fertilized egg to another "willing couple".

The appellate court was particularly troubled by the lack of a contract between the divorced parties and the fertility clinic.  Addressing the family court's creation of duties to a non-party, the MCOA stated:

Aside from the permissive nature of the order, the order imposed upon the clinic several obligations that the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic is able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate that the clinic is willing or able to accept the order’s apparent restriction that the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, is currently paying for any of the clinic’s costs arising from cryogenic preservation until a “willing couple” is available for adoption.  We are further left to assume from this record that there is preservation in fact, viability, and, non-abandonment of the embryo.  Moreoever, in the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic is willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford's circumstances with an earlier "zygote" case from 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court "custody" dispute, along with a companion "breach of contract" cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors and the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff's claims or, in the Stratford case, the lower court's rationale.

Nor did the Stratford panel endorse the lower court's "balance of interests test", ruling that such was within the purview of the legislature and not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings in the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, and other pre-embryonic cells.

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