Will Sofia Vergara Win Frozen Embryo Lawsuit? Ex Nick Loeb Still Seeking Full Custody Of Unborn Children

Things are heating up in the battle between exes Sofia Vergara and Nick Loeb. The pair have been facing off in court since 2014 over embryos they froze with the intention to use before they broke up.

Loeb is seeking full custody and while he wasn’t successful in getting it the first time around, he’s got a new strategy he and his legal team think is a winner. According to Page Six, however, family law attorneys are not so confident.

The lawsuit, filed in Louisiana, lists the two embryos — referred to as “Emma” and “Isabella” — as the plaintiffs rather than Vergara’s ex. The problem, according to lawyer Michael Stutman, will be convincing a judge of the viability and personhood of the unborn children.

“The Supreme Court long ago decided that to achieve the status of a protected human life an embryo has to be able to survive on its own. With these embryos being unable to do that, they probably have as much legal protection to exist as your sofa,” he told Page Six.

Additionally, divorce lawyer Martha Cohen Stine suggests that Loeb’s decision to name the embryos as the plaintiffs rather than himself is a sure sign of his fears of losing a lawsuit he filed in another state. Loeb has filed a motion to close the case in California, which the New York-based lawyer believes he would have lost anyway. Stine says Loeb shouldn’t expect to see success in Louisiana either, as the embryos are not located there.

“He’s clearly worried that he’s about to lose the California lawsuit,” she said. “I think this lawsuit will be dismissed on its face because the embryos are not located in Louisiana.”

The ongoing case between Vergara and Loeb raises several complex questions. Loeb and his legal team claim the “Modern Family” actress’ desire to destroy the embryos is denying them their right to life. He believes that he should be allowed to have them implanted in a surrogate and raise them as his own, despite Vergara’s wishes. Reproductive Law Center attorney Tom Pinkerton told International Business Times in April Loeb’s case will hold little weight in court.

“The idea that he wants to save the embryos because he thinks they’re people — it’s not going to fly,” Pinkerton said. “The courts have consistently ruled that a person’s interest in not becoming a parent against their will usually carries more weight than the other party’s desire to become a parent. So I think he’s going to lose and I think she’ll win. And I think it comes down to what’s in the contract they signed, or the consent form they signed with the doctor.”

According to In Touch, Loeb said that in November 2013 he and Vergara were given forms with stipulations about the fate of their unborn children outlined in them. Loeb claimed he signed the documents, which stated that should he or Vergara die — not separate — the embryos be thawed and not fertilized. Vergara’s ex said he did not agree with the plan outlined in the forms and signed them “under duress” as he feared he would suffer further “abuse” from his ex.

Neither Vergara nor Loeb has spoken out about the second lawsuit.