THE battle over Sofia Vergara’s embryos has taken an extraordinary turn — with a right-to-live lawsuit filed on behalf of the fertilised eggs against their mum.
The female embryos are listed as plaintiffs “Emma’’ and “Isabella” in the Louisiana court papers, which come amid her knockdown, drag-out legal battle with former fiance Nick Loeb, sources told The NY Post.
Loeb had already sued the Modern Family star in California for custody of the embryos, which the couple created when they were still together in 2013.
The potentially landmark new case in Louisiana — a traditionally pro-life state that offers special legal protections for frozen embryos — also lists the embryos’ “trustee,’’ James Carbonnet, as a plaintiff, sources said.
The new lawsuit contends that Emma and Isabella, by not being born, have been deprived of an inheritance from a trust that has been created for them in Louisiana, according to sources.
It asks that the frozen embryos be given to Loeb so that they can live and receive the trust set up for them, which would fund, among other things, their health care and education, sources said.
The lawsuit also contends that a contract Vergara and Loeb previously signed at the ART Reproductive Centre in Beverly Hills should be voided since it violated California code and Louisiana law, according to sources.
The contract said neither party could use the embryos without the consent of the other. But the lawsuit argues that it didn’t say what should happen if Loeb and Vergara were to split.
Loeb, a 41-year-old businessman, spends his time between New York and Florida but has ties to Louisiana.
He graduated from Tulane University and still serves as a reserve police officer in the state, according to sources.
The then-happy couple first turned to in vitro fertilisation to have a child of their own in 2013.
The filing says that on March 4, 2013, Loeb and Vergara exchanged messages about the embryos after finding out they’d created five, sources said.
“You can’t keep 4 frozen lives forever or kill them, we will go to hell,” Loeb wrote to her, sources said.
“We r going to hell regardless,” Vergara responded, according to sources.
During the same conversation, the actress told him, “I’m doing it because I want you to have a baby,” sources said, citing the lawsuit.
But two rounds of IVF failed, and Loeb and Vergara eventually split on May 13, 2014, while at the Louis Armstrong New Orleans International Airport, sources said.
After they broke up, Loeb sent texts to Vergara including one that said, “We still have those 2 frozen babies,’’ sources said.
The new court papers insist that Vergara was adamant during her relationship with Loeb that, as a Catholic, she believed the embryos should never be destroyed — and she’s since broken their oral agreement, sources said.
Loeb filed to protect the embryos in California just a few months after they split.
But the court documents say he dropped that lawsuit Tuesday, after a California judge ruled in favour of Vergara, 44, in her quest to force Loeb to identify two previous lovers who underwent abortions after he impregnated them.
He had appealed the decision but was turned down by an appellate court.
Loeb previously told NY Post, “I would rather go to jail than reveal the names’’ and have the women face a legal quizzing from Vergara’s team.
The new lawsuit says Loeb should have full custody of the embryos so they can be implanted in a surrogate, sources said. Vergara’s parental rights should also be terminated, sources said.
It also insists that the actress should pay for any of the fees Loeb has incurred while Emma and Isabella have remained frozen, sources said.
Vergara — who last year married Magic Mike actor Joe Manganiello, 39 — has previously said children should be the product of a loving relationship. She has a son from another relationship.
Her lawyer, Fred Silberberg, has said the actress wants to keep the embryos “frozen indefinitely.”
“A child needs a mother and a loving relationship with parents that get along, that don’t hate each other … Kids need parents,” Vergara has explained.
“I wouldn’t want to bring kids to the world where it is already set everything wrong for them. It would be so selfish.”
“I’ve been working very hard for 20 years to get to this point where I am. I don’t want to allow this person to take more advantage of my career and try to promote himself,” she added in a May 2015 interview.
The actress has said the contract that she and Loeb signed should be the end of the story.