“Modern Family” star’s legal nightmare hints at a truly post-modern future for dynastic family planners. All clients contemplating fertility therapy need to decide the fate of all genetic material now.
Until about a year ago, Sofia Vergara was probably best known for playing the stepmother in a complex blended family on TV. Now her real-life relationships are leaving the high-tech sitcom writers in the dust.
Vergara is in the possibly unique situation of defending against a lawsuit filed on behalf of two of her own embryos. And odds are good she won’t be the first.
Premier Trust lays out the fundamentals of the story in a recent white paper HERE. Basically, Vergara and former fiancee Nick Loeb — of the Lehman Brothers Loebs — banked their genetic material a few years back in order to make sure they could have children.
Unfortunately, they split up a year later, leaving the theoretically viable embryos in legal limbo.
Loeb insists that he was coerced to sign away the right to claim what he sees as his daughters. Vergara is perfectly happy to let them remain on ice indeterminately.
Again, you can get all the background in the Premier paper HERE.
So far it’s a classic “he said, she said” case of a relationship that melts down, leaving what some states call property and others call children in the middle.
That’s why every wealthy family pursuing fertility therapy today needs to look into trusts or at least detailed orders spelling out where unused genetic material ends up.
Where this situation takes a turn is that somebody — presumably Loeb or someone connected to him — set up a trust in the embryos’ names.
The trustee is now suing Vergara on their behalf, arguing that if the embryos aren’t implanted and brought to term, the trust can’t distribute its assets to them as beneficiaries.
Last-ditch effort or shape of things to come?
It’s not the strongest argument on a lot of fronts. For one thing, the decision to file in Louisiana where embryos are legally people instead of California where the work was conducted, Vergara lives and the embryos are stored is on the tenuous side.
While these may be people in Louisiana, they’re California “citizens” in that case and so subject to California law, where they’re just little collections of cells with no inherent rights.
Furthermore, the trust’s involvement should raise a few eyebrows. Admittedly, the trustee has a fiduciary duty to pursue the grantor’s directives, but that’s a moot point until either of the embryos actually turns into a beneficiary.
For better or worse, we’re still looking at a revocable self-settled instrument here. Title to the assets and fiduciary responsibility don’t actually pass to the trustee until it becomes irrevocable upon the creation of at least one named beneficiary.
In the meantime, the trust is really in the delicate and circular position of lobbying the court to engineer the circumstances that would create it as an independent entity with an interest in protecting its ability to distribute to what would then become beneficiaries.
If the embryos remain frozen, there are no beneficiaries and the trust has no responsibilities to fight for. In effect, the current lawsuit boils down to the trust petitioning to make sure the embryos come to term, at which point the trust will have someone to pay and the duty to pay them.
Until that happens, the trust has to claim that Vergara is interfering with the inheritance rights of inheritors who do not currently exist — effectively forcing her to release the embryos to suit its operational needs.
Imagine the trustee of a revocable living trust hoping the grantor will die so the work of distributing the assets can start. The logic is a little tortured.
Nonetheless, it’s the best argument people sympathetic to Loeb have put together. And if it succeeds, I suspect we’re only seeing the first of many legal attempts to rescue embryos from perpetual storage.
Your clients might be on either side of the divide between embryos as people and embryos as property. Spelling out all the details in an advance directive makes sure their wishes are followed either way.
Disposition of unused genetic material should be clarified under a variety of scenarios: death of one DNA donor, death of both, split, mutual or unilateral decision to stop fertility efforts.
Inheritance should be laid out as well. While state rules currently decide where in vitro children fall in the inheritance chain, the Vergara case demonstrates that there will always be attempts to jump state borders if the money is available and other motives are strong enough.
This time around, the trust is making sure to absolve Vergara of all parental responsibility and support. But at this point it’s not hard to imagine unscrupulous people bringing an embryo with wealthy parents to term in order to slip into the dynastic succession, even after the parents are dead.
In Louisiana, embryos have “curators,” effectively prenatal guardians who advocate for the legal person’s in vitro interests. Other states may one day follow suit, speaking up to ensure that unborn children get a say in the distribution of family wealth.
And if Loeb is named curator of these embryos across state lines, it doesn’t really matter. The family should specify which legal code applies to their genetic material — evidently natural jurisdiction isn’t enough to keep it in the family.
Again, Premier has gone into greater detail. You can download their findings HERE.