Courts in Canada have never seen a case like the one involving Hollywood actress Sofia Vergara, who is fighting her former fiancé for custody of two frozen embryos – but not because similar cases haven't happened here.
There is no case law on embryo custody in Canada, says Toronto-based lawyer Sherry Levitan, who specializes in surrogacy and fertility law. But that is because most Canadian couples choose not to pay the expensive costs of going to court. Instead, they tend to settle the dispute with the help of a mediator out of court.
In Vergara's case, her former fiancé, Nick Loeb, is suing the "Modern Family" star for the embryos the couple created by in-vitro fertilization. He says he longs to become a parent and doesn't want the embryos destroyed or to go unused forever.
Loeb says he's not looking for child support and would be willing to pay for all the costs of implanting the embryos into a surrogate and then raise the children on his own.
Levitan says in cases like this, the court has to try to balance one person's right to procreate and another person's right not to procreate.
"And the 'nots' tend to win," she told CTV's Canada AM Thursday.
She thinks Loeb is unlikely to win because judges tend to be reluctant to compel anyone to become a parent against their will, which is what would happen if Loeb goes ahead with bringing the embryos to term, says Levitan.
The only factor that would qualify as an extenuating circumstance would be if this were Loeb's very last chance of having children. A cancer survivor, for example, might be unable to create another set of embryos so that aspect would influence a court.
"But Mr. Loeb can create more sperm; I don’t think that would be a problem," Levitan said.
"He wants to be a father and there are easier ways for him to be a father than to launch an expensive lawsuit against a celebrity."
Levitan notes that, while Loeb and Vergara likely signed reams of paperwork while seeking fertility help from an IVF clinic, those consent forms were more about their business relationship with the clinic and state nothing about what happens in the event of a breakup.
"They're not meant to set a legal relationship between you and the other person going through IVF," she said.
Loeb's promises to pay all the child's expenses aren't likely to sway a judge, since that promise would be difficult to keep if Loeb were to suddenly find himself destitute.
In Ontario and most other provinces in Canada, Levitan says Loeb would be within his rights to sue Vergara for child support.
"No one can waive child support; it belongs to the child," she said. "And here, (the amount is based on) a percentage of income. So you can imagine we're talking about a lot of money."
Levitan notes that Loeb has earned himself plenty of air time and perhaps notoriety out of this dispute already, which may be something he was seeking.
She says in Canada, most of these cases never make it to court.
"I suspect this case wouldn't be going to court either, if it weren't for Sofia Vergara," said Levitan.
