Sofia Vergara is currently being sued on behalf of her frozen embryos and their right to be born. Much of the journalism about the lawsuit relies on classic feminist pro-choice arguments about women’s right to control their own bodies and not have unwanted pregnancies imposed upon them. It fails to note the most disturbing element: that this defies categorisation, that this does not fit easily into traditional pro-choice arguments. Vergara’s ex-partner, Nick Loeb, argues that the embryos should be transferred to his custody and implanted in a volunteer surrogate mother. There is no imposition on Vergara’s body. Feminist philosophical thought experiments such as The Violinist and The Expanding Child do not apply. Rather than a woman’s right to control her own body, it becomes a matter of property. It raises the question: who owns the rights to the embryos?
The embryos – named Emma and Isabella by Loeb – were conceived with IVF in 2013. Loeb has attempted to sue for the embryos’ custody since their divorce in 2014: he now bases his argument on the embryos’ deprivation of their inheritance, and claims that “A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term if the woman objects?” This is a persuasive argument: by using a volunteer surrogate, there is no imposition on Vergara’s body, and they become equal contributors. By definition, an embryo is a fertilised egg, so I have avoided referring to them as “Vergara’s embryos” or “Loeb’s embryos”.
(Photo Credit: Science Alert)Â
 A contract signed at the time of the embryos’ conception states that neither partner can do anything with the embryos without the other’s consent; but if, as Louisiana law states, a fertilised egg is a juridical person, then this is an immediate contradiction, which turns the argument into one of ownership rather than the embryos’ right to be born. Loeb is using fatherhood as an avenue to further his argument. To speculate, it is highly unlikely that the state would force the embryos to be born if he were to withdraw his legal case. Furthermore, if the logic that an embryo is a juridical person was applied consistently, the embryos should not have been frozen in the first place.
 This lawsuit is unique, and it must be tackled as such. With the possibility of infringement of Vergara’s body removed, it leaves us with one other avenue of argument: do embryos have an intrinsic right to be born? Most pro-choice and pro-life debaters conclude that there is a right to life, although the pro-choice argument asserts that the right to life does not trump a woman’s right to control her body. The Vergara case is unique. It cannot be settled with traditional feminist arguments, and framing the lawsuit as “mad”, or like a premise of a Black Mirror episode is unhelpful. It must be acknowledged that the case has a small, but very real chance of success. We must confront these complexities.
I ask again: who owns the rights to the embryos? Does it matter who owns them if they have an intrinsic right to be born? Is it possible to answer these questions?
(Photo Credit: CTV News)Â
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