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May 14, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Since one of the people involved in this case is a television actress, it’s occupied the news media a fair amount (New York Times, 4/29/15). And the case does raise some issues regarding parental rights and obligations that touch the heart of our laws and customs.

In a nutshell, Nick Loeb and “Modern Family’s” Sofia Vergara were an item for about four years. During that time Loeb told Vergara that he wanted children. She agreed, but for some reason wanted to use a surrogate, so the two produced a couple of embryos which they tried to have implanted using a surrogate. But one attempt failed and the second resulted in a miscarriage. So they tried again, producing two embryos that have been kept frozen for later use.

They signed an agreement that the embryos would only be implanted if both Loeb and Vergara agreed to do so. But, after the first unsuccessful efforts, Vergara apparently changed her mind about bringing the embryos to term, but Loeb was still intent on having children. Eventually, the pair split up.

Now Loeb wants to renege on their agreement. He wants to employ a surrogate on his own, bring the children to term and be a father to them. He says he doesn’t care if Vergara takes part in their lives or not. He just wants his own kids, so he’s filed suit in California to have their agreement abrogated.

It must be said, that Loeb deeply desires children.

For as long as I can remember, I have dreamed of being a parent. I was only a year old when my parents divorced. My father gained custody, and my mother virtually disappeared from my life. I did not see her again until I was 9, and she died when I was 20. This made me yearn for the type of family based on the images one might see in a Norman Rockwell painting.

My father, whom l love, worked as a financier, philanthropist and diplomat. He was not around much, as work and travel left little time for parenting. It fell to my Irish Catholic nanny, Renee, to raise me. Although my father is Jewish and I was baptized Episcopalian, in my mother’s faith, I spent more time going to Catholic Mass with Renee as a child than being influenced by any other religion.

When I was in my 20s, I had a girlfriend who had an abortion, and the decision was entirely out of my hands. Ever since, I have dreamed about a boy at the age he would be now. Later, I was married for four years to a woman with whom I tried to have children, with help from a fertility specialist. The difficulties we had made me feel, more than ever, that the ability to create life was special.

Reading that, it’s easy to feel Loeb’s passion his need for a child. In a sense, he lost his own parents and now has an elemental need to give to a child what he missed as one. I get that.

But I also see a darker side to his desire, not just to have kids, but those specific embryos he and Vergara began and who now sit frozen in some IVF clinic in California. After all, there’s nothing to indicate that they’re his only chance at parenthood, and Loeb himself says they’re not.

To begin with, there’s the little matter of the agreement he signed saying the embryos should remain frozen until both he and Vergara agree to use them to produce children. Loeb seems to think that something should permit him to abrogate the agreement he signed. Just what that is, he doesn’t say and I can’t guess at. He suggests it has something to do with the embryos being “life rather than property.”

I hate to tell him, but whatever they were when he signed the agreement, they’re the same thing now. And frankly, his argument that he should be free to do with them as he pleases sounds a lot more like something a person might say about a possession than about another human being. “It’s my land; I can do with it what I wish,” isn’t a legally sound argument, but it makes more sense than “she’s my child, I can do with her what I wish.”

However Loeb wants to slice the matter, he offers no convincing reason why he shouldn’t be bound by the terms of the agreement he made with Vergara. After all, it’s pretty clear that she wouldn’t have agreed to contribute eggs to produce the embryos had Loeb not agreed to only bring them to term with her consent. That pretty much means he’s legally estopped from doing anything with them without her agreement, which he doesn’t have. Put simply, a deal’s a deal.

But Loeb’s op-ed raises further issues.

Does one person’s desire to avoid biological parenthood (free of any legal obligations) outweigh another’s religious beliefs in the sanctity of life and desire to be a parent? 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 even if the woman objects?

First, let me put out one fire before it starts. Loeb correctly points out that this has nothing to do with abortion or abortion rights. Loeb wants a child, and that wish is the exact opposite of abortion which is the termination of a pregnancy, i.e. preventing a child from coming into being. Plus, obviously neither Vergara’s nor Loeb’s nor any surrogate’s rights to privacy enter into what he’s proposing.

Now, given that this case is before a California court and because the Golden State has a specific statute governing the parental rights and responsibilities of sperm donors and, I assume, egg donors, I think he has a point. In California, a person who donates sperm can be free of any and all parental responsibilities including paying child support. From what I gather, Loeb is willing to do what’s necessary to have Vergara adjudicated a donor who, under state law, is then free of any responsibilities toward the children.

But one problem with Loeb’s theory is that not all states have laws like California’s. So, in those states, what Loeb proposes is nothing less than allowing one parent to decide the responsibilities of the other parent. In those states, allowing one person to bring the embryos to term over the objections of the other person, effectively locks that parent into 18 years of child support for a child he/she never wanted and didn’t agree to produce.

In that, Loeb’s desire to have a child despite Vergara’s express desire to the contrary, looks very much like what men face every day. They may not want a child, may not be ready financially, emotionally, or any other way to have a child, but the fact is, it’s not up to them. Many men argue that they should have “opt out” rights, i.e. the legal power to sign a form prior to the child’s birth abandoning all rights and responsibilities to the child. They point out that the Guttmacher Institute’s surveys of women who’ve aborted a fetus demonstrate that their reasons for doing so are rarely medical. In one such survey, only 11% of women listed a concern for their own safety or that of the child as a reason for terminating their pregnancy. The vast majority of their reasons — “I haven’t completed my education,” “I’m not financially ready,” “I don’t have a good enough relationship with the dad,” etc. — apply equally to men and women. In short, why should one sex have the power to decide the parental responsibilities (or rights) of the other sex?

It’s a good question and one that Loeb doesn’t address other than to infer that, in their case, Vergara would be in the clear. But would she be? Could Loeb, who lives in Florida, sue her for child support in that state in the event its laws differed from California? I don’t know the answer, but I suspect it’s a possibility, in which case, Loeb truly would hold her rights and responsibilities in his hands.

I’ve objected to that countless times when mothers commit paternity fraud, abduct children so their dads can’t see them, refuse to tell a father about his child, depriving him and the child of their opportunity to bond, place a child for adoption without the knowledge or consent of the father or simply refuse to honor his visitation rights. Placing one adult’s rights in the hands of another adult is morally wrong and legally inconsistent with everything else we do in law. So we shouldn’t do it when it comes to parental rights and responsibilities. In fact, we especially shouldn’t do it in that case.

Loeb needs to drop his claim to embryos that are half Vergara’s. He should honor his agreement and, if he wants kids, he should find a woman who wants them too.

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