Rich Hollywood celebrity meets boy and falls in love. Couple makes plans to start a family and live happily ever after. However, this story had no fairytale ending but rather a nasty breakup splattered all over the tabloids.
In 2010, Sofía Vergara met prominent businessman Nick Loeb, fell in love, and began making plans to have a family together. This was not your typical “first comes love, then comes marriage, then comes the baby carriage” story. It was more like Modern Family, complete with multiple rounds of in vitro fertilization whereby embryos, with Vergara’s eggs and Loeb’s sperm, were created and frozen for later use on a surrogate who was an employee of Vergara’s.
Per the complaint filed in California Superior Court in the Santa Monica Courthouse, Loeb and Vergara retained counsel to draw up the gestational-surrogacy agreement and were advised against excessive compensation as well as not to use an employee of Vergara’s to carry the pregnancy to term. Loeb maintains that Vergara moved forward while ignoring the legal counsel and demanded that her employee, a 44-year-old woman, serve as her surrogate. The surrogate’s payment — which included gifts worth $200,000, and Vergara made some of her mortgage payments — was at least four times the compensation that surrogates typically receive. Twice the surrogate was impregnated with their embryos, and twice no pregnancy was achieved.
While much of this public debate has been over the disposition of their remaining frozen embryos, glaringly absent from the media noise has been concern that an employee of Vergara served, or perhaps was pressured and coerced, to be impregnated, twice, with the frozen embryos. It would not be hard to imagine that providing your body to your employer, especially a wealthy, powerful actress, when asked to do so, might come with a high level of pressure to comply for fear of losing your job.
As Vergara’s case demonstrates, surrogacy often depends on a wealthy individual’s exploitation of a woman of lower socioeconomic status. Rarely is this a free decision on the part of the surrogate, and it’s almost impossible to ensure informed consent. It’s hard to imagine that the gifts and incentives provided by Vergara didn’t influence her surrogate to act against her own self-interest and ignore some of the serious medical risks and consequences that she was signing up for in this endeavor. Conflicts of interest are of serious concern when a third party is brought into a contract to make a baby for someone else. No one in this process seemed bothered that they were participating in a practice that is effectively a market for the buying and selling of children.
Canada prohibits payment to women who serve as surrogates, because it is concerned about the exploitation of poor women by the wealthy and about creating a for-profit market for surrogacy. In California, there are no payment restrictions to paying women to have babies for another.
Rarely is this a free decision on the part of the surrogate, and it’s almost impossible to ensure informed consent.
In the court of public opinion, this case should serve as exhibit A for how assisted reproductive technologies, while being marketed as a way to help people have babies, often present us with complex ethical problems that exploit some for the gain of another. These problems can be compounded as relationships between the parties who created the embryos break down. Also, these novel technologies work their way into our courts, and without federal laws set up to address disputes, legal remedies vary from state to state.
Until the court decides, will Nick get to keep the embryos, or will Sofía get to have them destroyed? Their “daughters” remain in a frozen suspended state in a fertility clinic in Beverly Hills. Loeb’s battle hinges on several counts, one being that California recognizes that an unborn child has “potential interest.” Also, according to the California civil code, a “child conceived, but not yet born, is deemed an existing person, so far as necessary for the child’s interest, in the event of the child’s subsequent birth.” What remains to be seen, though, is how this code, which clearly imagines a baby in utero, not in a cryopreservation tank, will be applied to this particular case.
Key to Loeb’s case however, may be the violation of this provision in the California health and safety code: “When providing fertility treatment, a physician or surgeon or other health care provider shall provide a form to the male and female partner . . . that sets forth advanced written directives regarding the disposition of embryos.” The code explicitly states that the parties must be able to choose what will happen to the embryos if the couple separates:
In the event of separation or divorce of the partners, the embryos shall be disposed of by one of the following actions:
(a) Made available to the female partner;
(b) Made available to the male partner;
(c) Donation for research purposes;
(d) Thawed with no further action taken;
(e) Donation to another;
(f) Other disposition that is clearly stated.
From the filed complaint, it is clear that Loeb was never given these options, or any options, in the event that he and Vergara separated.
Here in the United States, we have well over 600,000 embryos — or “souls on ice,” as journalist Liza Mundy calls them — and no federal policy on their treatment or disposition. Time will tell who will prevail; the case is making its way through the courts. At the moment, these embryos, who were created as wanted children, seem to be caught in a custody battle that sadly may be fought and won as if they were products. The irony is that if Loeb wins and is given custody of the embryos, he will need a surrogate in order to bring them to birth.