Judge OKs new lawsuit that would allow Sofia Vergara's ex to seek custody of frozen embryos

LOS ANGELES, CA - JANUARY 27: Actress Sofia Vergara (R) and Nick Loeb attend the 19th Annual Screen Actors Guild Awards held at The Shrine Auditorium on January 27, 2013 in Los Angeles, California. (Photo by Mark Davis/Getty Images) (2013 Getty Images)

SANTA MONICA, Calif. (AP) – Sofia Vergara's ex-fiance will be allowed to file an amended lawsuit seeking custody of two embryos he created with the "Modern Family" star, a judge ruled Friday.

Superior Court Judge Lawrence Cho ruled that Nicholas Loeb can file the revised complaint, which for the first time will seek custody of the embryos. Loeb, who dated Vergara for several years before breaking up last year, sued the actress in August seeking a ruling that the embryos could not be destroyed.

Vergara's attorney opposed allowing the amended lawsuit, arguing during a hearing that Loeb has failed to state a viable legal claim to the embryos. Attorney Fred Silberberg noted that Loeb signed an agreement that both parties needed to consent to what happened to the embryos.

He accused Loeb, who wrote about the dispute over the embryos in the New York Times, of using the lawsuit to raise his own profile. "It is almost a sham pleading under the law," Silberberg told Cho.

Loeb's attorney, Christina Goodrich, disputed Silberberg's characterization and argued that the case presents a novel legal question. She said the fate of the embryos has been a very personal, private struggle for her client.

"He does believe that they are his daughters," Goodrich said.

Loeb's initial lawsuit identified him and Vergara as John and Jane Doe, but the new complaint will use their names.

Vergara and Loeb broke up in May 2014.

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