Sofia Vergara’s ex-boyfriend scored a court victory Friday in the former couple’s bizarre battle over their frozen embryos.
A judge ruled Nick Loeb can amend his headline-grabbing lawsuit against the “Modern Family” star for a third time – adding a new claim of breach of oral contract and an explicit request for full custody and use of the embryos.
Prior versions of the lawsuit filed in August and April did not specifically ask for the right to bring the two cryopreserved female embryos to term against Vergara’s wishes.
A proposed version of the new complaint states that Loeb and Vergara had a verbal agreement to create viable embryos, “setting life in motion,” and then implant them in a surrogate without fail.
A lawyer for the Colombian-born actress tried to fight Loeb’s right to file a new amended complaint Friday, claiming Loeb’s lawyer Christina Goodrich is dragging her feet and already missed her chance to overhaul the case.
“(Goodrich) is now on her third bite of the apple,” lawyer Fred Silberberg said in the Santa Monica, Calif., courtroom.
“Plaintiff is using this lawsuit to continue to attack (Vergara) in the press and continue to have his own visibility in the press,” he said.
The fight over the embryos started off as an anonymous Jane Doe case but got leaked to the press in recent weeks and culminated with Loeb writing an op-ed piece in the New York Times.
He wrote that the battle had “nothing to do with the rights over one’s own body, and everything to do with a parent’s right to protect the life of his or her unborn child.”
Silberberg scoffed at that notion Friday.
“There is no legal issue,” he said in court, arguing that both parties signed a consent form requiring the agreement of both parties before any action could be taken with the embryos.
“Embryos are not children,” Silberberg said.
Vergara and Loeb broke up in May 2014.
She has stated through her lawyers that she does not want the embryos used or destroyed – rather held in the same frozen state they’ve been in since the couple parted ways.
Vergara, 42, is now engaged to “True Blood” star Joe Manganiello.
In the proposed third version of his complaint, Loeb claimed that Vergara was well aware of his intention to implant the embryos in a surrogate, no matter what.
He included a series of text messages allegedly exchanged with Vergara in March 2013 after they learned their IVF treatment resulted in multiple viable embryos.
“We have 5 embrios. She (the doctor) said she can’t belive it,” Vegara allegedly texted.
“Wow..that’s 5 lives,” Loeb responded.
“I never (thought) that could happened…She always said maybe 2,” Vergara allegedly replied.
“Now what…You can’t keep 4 frozen lives forever or kill them, we will go to hell,” Loeb replied.
“We r going to hell regardless,” the actress wrote back, according to Loeb.
Initial attempts to implant the embroys in a surrogate were not successful, and the couple underwent a second round of IVF that resulted in the creation of two female embryos in November 2013, according to the filing.
“He does believe they are his daughters,” Goodrich said in court Tuesday.
Outside court, Vergara’s lawyer reiterated his argument that both parties signed an agreement that they couldn’t move ahead unilaterally.
“You don’t get to change your mind after the fact,” he said. “He’s acting now as if they are in fact children.”