The newest twist in the long-running dispute between Sofia Vergara and her former fiancé, Nick Loeb ,over their frozen embryos is not actually between Vergara and Loeb. Instead, out of the blue, James Charbonnet, claiming to be the trustee of the frozen embryos, has sued Vergara in Louisiana.
Many couples have gone to court to fight about their frozen embryos. But, in addition to the fact that this case involves Vergara, there are a lot of strange things about this lawsuit. I’ll unpack just a few.
First, who cares about these embryos? Last year, Loeb sued Vergara in California, trying to make sure that the embryos they had created would not be destroyed. Vergara’s lawyers recently asked Loeb for the names of two former girlfriends who may have had abortions during his relationships with them; rather than provide the information, Loeb is dropping that particular lawsuit. The status of the embyros is unclear, as Vergara has said that she doesn’t want to get rid of the embryos, but she doesn’t want him to use them.
Second, why Louisiana? The embryos are in California, and so is Vergara; Loeb is in New York. So here’s why Louisiana is the chosen forum: Louisiana is the only state that accords status to an embryo as a “juridical person,” LSA-R.S. 9:123, so not only does it have legal status, it can be represented by an attorney. In fact, a court can appoint a “curator,” a guardian, to protect the embryo’s rights. LSA-R.S. 9:126. And, indeed, the complaint requests that the court appoint Loeb as the “curator” for the embryos.
Third, what’s this about a trust?
The lawsuit complaint explains that the trust was created in Louisiana to provide for the health, education, maintenance, and support of its beneficiaries (complaint, Para. 78). Nothing unusual about this standard — it is a common one in trusts.
But — the complaint also alleges that the trust was created in Louisiana to benefit the two female embryos (named “Emma” and “Isabella” in the lawsuit). And it claims the two embryos are “scheduled” to be the only beneficiaries of the trust. [Paras. 73-75] This raises the issue of whether such a trust, set up only to benefit in vitro embryos, is valid. Anyone can create a trust and, in many states, a trust doesn’t even need to be in writing. But when someone (the settlor) creates a trust, black letter law requires that there must be a beneficiary. Even if the beneficiary is not “ascertainable’ when the trust is created, the beneficiary must come into existence within a specific time period. Restatement (Third) of Trusts § 44 (2003). The complaint states that the two embryos “must be born alive in order to receive the inheritance due from the Trust.” (Para. 79) But we don’t know much else about the terms of the trust; unlike wills (or legal complaints), trusts are private documents that do not need to be filed in court.
And finally, what does the lawsuit seek? It requests that the court order that Vergara consent to let the embryos develop and be born.
I don’t know what the Louisiana court will do, although the suit seems far-fetched. I have taught trusts and estates for many years, I have co-authored one trusts and estates casebook and I’m in the midst of co-authoring a second. While I have seen plenty of lawsuits in which beneficiaries sue trustees, I have never seen a lawsuit in which a trustee sues to make sure that the beneficiaries are born (nor to appoint a “curator”). Because the embryos aren’t in Louisiana, nor have they ever been stored there, it doesn’t seem as though a Louisiana court would have any control over them. If they were living children, the Louisiana court would not have any authority over them because Louisiana is not their “home state”.
In speculating what this case is about, it is hard to ignore that one of the attorneys who filed the suit is a Senior Fellow in Legal Policy at the Charlotte Lozier Institute. According to the Institute’s website, “We desire and seek that the benefits of modern medicine and the wealth of nations be put to the service of human life and that the scourges of abortion, physical disease, euthanasia and human exploitation will be diminished and ultimately overcome.”
So this functions as yet another publicity stunt to try to further an anti-abortion agenda. And it is a stark reminder of ongoing battles over a woman’s choice.