If you poke at a human embryo, will it say something? Will it at least wriggle uncomfortably? Can it somehow give a lawyer instructions, perhaps through gesture? The answer, as far as science knows, is no. So if an embryo launches a lawsuit to, say, prevent itself from being flushed down the toilet, it’s going to need help. It’s going to need a “litigation guardian” to speak for it, and fill out the paperwork. Put more accurately, the embryo will need a guardian to speak for “him” or “her,” because the embryo would be considered a person, even though it doesn’t have a head and it’s really, really small. Weirdly, this is now occurring in the United States. An embryo has “lawyered-up.”




The embryo’s mother is Sofia Vergara from the hit comedy TV show Modern Family. The father is her ex, Nick Loeb. (The embryo is sitting in a freezer in some lab in Beverly Hills.) When they were together as a couple, freezing an embryo to have a baby at a later date seemed like a good idea. Then they broke up.

Ms. Vergara doesn’t now want to have a baby with her ex, but he does. Even though, as a man, he could have a kid anytime, he says he wants to make a baby from this embryo. It’s not entirely clear why, but perhaps it’s because the baby’s mom would be Sofia Freakin’ Vergara! Also, he says he believes in the “sanctity of life,” and poses the following question: “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?”

The two have been fighting in court for quite some time, and now that the embryo has an attorney and has launched its own lawsuit — for the right to not be flushed down the toilet, but rather to be transferred to a uterus so it can be born, and eventually even claim an inheritance — this could get even more interesting. Stay tuned…

For a durable and responsibly-negotiated surrogacy or donor agreement, contact Shirley Levitan.

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Bill Rogers is a Toronto-based lawyer, journalist, and family law mediator