May 22, 2015 2 min read

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 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 the embryos could not be destroyed.

Vergara’s attorney opposed allowing the amended lawsuit, arguing during a hearing Loeb failed to state a viable legal claim to the embryos. Attorney Fred Silberberg noted 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 the case presents a novel legal question. She said the fate of the embryos was 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.