Note to Sofía Vergara’s Ex: Embryos Are Not Alive

The legal battle to “save” the former couple’s fertilized eggs raises an issue this IVF patient is intimately familiar with. And it could set an extremely dangerous precedent for all women.

When I did my first round of IVF nearly three years ago, the fertility clinic had created about five embryos from my eggs and my husband’s sperm. Before we transferred one back to my uterus, we had to sign a form determining what we wanted to do with the remaining embryos, in the future, should we not need them.

Would we want to donate them to research, give them to someone else, or destroy them?

My husband and I looked at each other in complete agreement: “Give them to other struggling couples,” we said. With five embryos and plans for only two children, we innocently believed we’d have three leftover embryos, and what better thing to do than help someone else who was struggling? (In fact, we had specific people in mind.)

It turns out none of the five turned into our children. But our initial instinct, although optimistic, was still correct: We would donate embryos if we could because embryos are not babies. They have the potential for becoming children in a way that flour has the potential to be a cake. But they are a long way away from there, and to suggest otherwise setting a dangerous precedent.

I thought of our naïveté this week because of the legal battle actor Sofía Vergara is having with her ex-fiancé, Nick Loeb, who wants rights to their frozen embryos. “When we create embryos for the purpose of life, should we not define them as life, rather than property?” he wrote in a New York Times op-ed last week, frighteningly entitled “Our Frozen Embryos Have a Right to Live.” 

He continues, “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?” Ironically, speaking of legal obligations, Loeb signed a legal document in 2013 that stated that any embryos created during IVF—they did it twice, according to Vergara—could only be used if both parents consented. But last year he filed a complaint in Santa Monica courts for the right to use the embryos, and asked the court to have it voided based on the fact that the contract did not specify what would happen if they separated (as if Hollywood couples never split).

There are many problems with Loeb’s claim: On a personal level, he’s violating his own commitment. On a practical level, he doesn’t need the embryos. Loeb is hoping the court will nullify his contract based on other cases where women with cancer won the rights to their embryos because it would be their only chance to have their own genetic children. But Loeb can more easily impregnate another woman (or fertilize her eggs). Man’s sperm doesn’t deteriorate as quickly as a woman’s eggs do with age.

But the most perilous precedent Loeb is setting for a national audience is the claim that embryos are alive. “Many have asked me: Why not just move on and have a family of your own? I have every intention of doing so. But that doesn’t mean I should let the lives I have already created be destroyed [itals mine] or sit in a freezer until the end of time.”

Loeb and Vergara and their doctors did not create lives. They created embryos: fertilized eggs. If they are day-three embryos (“cleavage stage”) they will have four to eight cells, and if they are day-five embryos (“blastocysts”) they have several hundred cells. But either way, these embryos would have to divide another million times before they become a child over the next 42 weeks. First, the embryo would have to implant in the womb, then, two to three weeks later it would have to achieve a heartbeat, then it would have to make it through the first trimester without a miscarriage, and pass tests for all kinds of chromosomal abnormalities (especially when created from a 41-year-old woman’s eggs), and two more trimesters to become a living being.

Embryos are far from alive. Loeb pulls a sleight of hand when he says, “When we create embryos for the purpose of life should we not define them as life?” The purpose of life and life are not the same thing. But for many couples undergoing fertility treatment, it’s hard not to confuse the potential for life with life itself. He added, “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 the parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects?” Well, no, pal. Not if you sign a contract with the woman to whom the eggs belong. Which, incidentally, Loeb did, and on Monday morning, Vergara spoke out on Howard Stern’s radio show, according to the Hollywood Reporter, responding to his op-ed. “We wrote what we wanted at the time,” she said. “It’s not like a contract that they give right there the moment they take your eggs out.”

At the beginning of my medical journey—this was after two prior failed pregnancies—I too couldn’t help but look at our embryos that way. The first five that were created outside the womb—hard to believe these were the “test-tube babies” we’d heard so much about—seemed like a miracle.

“To think, this could be the beginning of our child,” I told my husband, as the doctor carefully inserted what seemed like the size of a speck of dust into my uterus using a catheter. That one was a three-day embryo, and resulted in a pregnancy, which never had a heartbeat. Only one of those five embryos made it to day five, but that blastocyst did not result in a pregnancy. Neither did the next two blastos we transferred, or the four after that which we did not transfer, but tested for chromosomal abnormalities, which they all had.

Over the last three years, we definitely learned the difference between “potential for life” and life. It’s romantic to think of those little “frosties” (what IVF women, in their cutesy lingo, call frozen embryos) as tiny cold little babies itching to become your children, because when you’re doing fertility treatment, you need all the positive thinking (“baby dust”) you can summon to get you through the arduous, awful process.

But “baby dust” isn’t science, and what Loeb is arguing is the same thing that anti-abortion (self-termed “right-to-lifers”) activists propose: that life begins at conception.

Currently at least six states have “personhood” bills or resolutions passed, with quite a few other states proposing initiatives that have failed in the past. Expect to see more in the future.

Although the first personhood bills were meant to protect life at all stages and prevent abortion and stem-cell research, they’ve now been expanded to include embryos.

For example, Oklahoma’s failed resolution in 2012 stipulated that “the term ‘persons’ … applies to every human being from the beginning of the biological development of that human being…. Only in vitro fertilization and assisted reproduction that kills a person shall be affected by this section.”

A destroyed embryo is now a “person” that is “killed.”

The national infertility awareness organization, RESOLVE, opposes any type of these initiatives because “Personhood legislation would produce so many legal uncertainties about the status of embryos that RESOLVE anticipates it would be difficult or impossible for reproductive endocrinologists to treat infertility patients using long-established assisted reproductive treatments….”

But it should be no surprise that arguments like Loeb’s are religious in nature, as his title “Embryos have a right to live,” echoes the “Right to Life” term, and he plays on people’s emotions about when life begins. 

People do feel attached to their embryos—that’s why there’s a glut of unused ones sitting in fertility freezers across the country, as couples cannot decide whether to destroy or donate their unused embryos to research. (Many are uncomfortable giving them away because they don’t want their full genetic children raised in another family.)

But it’s one thing for a couple to decide what to do with their own embryos, and another for the courts to decide what someone can do with them.

Why, it would be the same thing as allowing the court to decide what a woman should do with her body, if she can have an abortion or forbid her from having access to one.

Anyway, I’m glad Loeb made his battle so public, his reliance on religious terminology so clear. Because now everyone should understand that if you support a woman’s right to have an abortion, you should support her right to destroy her own embryos. An embryo is a hundred times less a life than a fetus.

Of course, I can’t really tell someone else what to believe as to when life begins. All I can say is that after almost three more years, nine more doctors, and eight more rounds of IVF, we’ve finally achieved a viable pregnancy—one with a heartbeat, lungs, a brain, and arms and legs that kick me all night long. I’m in my third trimester now, and every time I feel a POW! roundhouse or uppercut, I know that there’s a living, breathing child inside of me. Unlike all the embryos that came before.