As we wrote after the case began, Vergara and Loeb's disagreement teaches an important lessons for anyone considering IVF or other mean of assisted reproductive technology. But there's a greater lesson now. When the courtroom is the backdrop for a relationship of love turned to hate, things can rapidly spiral out of control.
Johnny Depp and Amber Heard provided a good example recently. But even they -- despite dramatic accusations of spousal abuse, infidelity, blackmail, and more -- found a way to put their differences aside, reach a settlement, and end the fighting. Vergara and Loeb don't appear to be heading down the same path.
Neither is willing to blink about what should happen to the two frozen embryos that they had created while together as a couple. At the time, Vergara and Loeb tried to use In Vitro Fertilization to conceive a child. They split after one failed attempt, before trying for a second time. Two female embryos were left frozen.
At the start of the IVF process, Sofia Vergara and Nick Loeb both signed a form directive from the medical facility. This form included an agreement with different options for what would happen to the embryos if not implanted. They filled out the form and both signed it, indicating that if either of them died, the embryos would be thawed, which would destroy them. The embryos would only be implanted or otherwise used if both Vergara and Loeb agreed to it. If not, the embryos would remain frozen indefinitely.
While the lawsuit was filed in early 2015, the dispute took a dramatic turn recently when Sofia Vergara's lawyers demanded to know the identity of two women whom Nick Loeb said had abortions after they each conceived a child with him. These happened approximately twenty years ago and Loeb contends have nothing to do with the current lawsuit. He says he developed his pro-life beliefs after that time in his life.
Vergara's lawyers believe that it is hypocritical of Loeb to pursue this lawsuit based on pro-life beliefs when he previously consented to abortions. They want to depose the two women to expose what they contend is Loeb's insincere beliefs. They accuse Loeb's true motivation to be publicity.
The California judge overseeing the case ruled that Vergara's lawyers can depose the two woman and Loeb has to reveal their identities. Loeb's legal team filed an emergency appeal of the ruling, but the appeal was denied recently. Nick Loeb now says that he will go to jail rather than disclose the names of the two women, whom he believes have a right to remain private and not be dragged into this public fight.
It is possible that Vergara's attorneys have pushed for these depositions at least in part to put pressure on Loeb. They have already filed a motion asking for the judge to dismiss the case on legal grounds, because of the directive form containing the agreement about what would happen to the embryos if not implanted. Loeb argues that the form should not be binding, in part because he contends that he only signed it because Vergara pressured and bullied him into doing so.
Vergara denies those accusations and says she took the matter very seriously when she signed the form, including which options to choose for what would happen to the embryos. Nick Loeb, she says, did not do so at the time. She told Howard Stern that Loeb should have taken the legal papers more seriously, like she did.
Ultimately, because of the lack of specific laws in California (and other states) addressing this issue, and the reality that there is no binding case precedence for this type of dispute, there is a strong chance that the judge will rely on the language of the agreement contained in the directive form that both Vergara and Loeb signed. If the judge does so, the case will likely be dismissed and the agreement upheld. Courts generally do favor and uphold agreements, even when they are contained within forms. If the judge does not do so, the case will proceed to a very messy trial, scheduled for this coming January.
Whether the case is resolved after a trial or if the Judge agrees with Vergara's legal position and throws out the lawsuit, it is a near-certainty that the losing side will appeal to the California Court of Appeals. Ultimately, given the uniqueness of this type of case and the high stakes involved -- with two potential lives in the balance -- the appeal would like proceed to the California Supreme Court, and perhaps even the United States Supreme Court. If that happens, it will be very interesting to see how the higher courts view the right to life for frozen embryos, which recent CDC statistics show have about a 30-40% chance of resulting in a live birth, based on Vergara's age at the time the embryo's were created.
In other words, because of the reality that most frozen embryos, like the ones that Vergara and Loeb created, would not result in both successful implantation and a live birth, this lawsuit is not really about the right to life as it is to the right for a chance at life. Loeb essentially contends that life is so precious that even this chance at life compels him to fight for the embryos so that he can try to have them implanted and potentially brought to life. He also acknowledges that he could try to have children with another woman -- and says that he intends to do that too -- but his beliefs are so strong that he will continue to fight for the chance for these two embryos.
And that gets back to why Vergara and her attorneys want to bring Loeb's former partners into the equation. Are his beliefs truly that strong considering that he consented to two prior abortions? And if they are truly that strong, why did he sign the directive form allowing the embryos to remain frozen indefinitely unless he and Vergara both agreed to implant them?
Clearly, this is a complex lawsuit with no easy answer in sight. This is why there is some logic to Vergara's position about the importance of the directive form they both signed.
Many people do not stop to think about the consequences of what they sign in the event that their loving relationship ends. Documents like prenuptial agreements, advance directives, power of attorney documents, and even bank forms creating joint accounts can have a very different significance for couples who are no longer together.
The lesson from Vergara and Loeb's messy battle is that everyone should take each and every legal, financial, and medical document they sign very seriously, especially when it impacts their futures -- and the futures of their children or potential children.