Sofia Vergara v Nick Loeb: Who should win custody of the embryos?

Recently, as I am prone to do, I was searching the Internet for news reports from America involving divorce and custody issues and came across an op ed written by actress Sofia Vergara’s ex fiancé, Nick Loeb, concerning an embryonic custody dispute the two were having.
After reading Mr. Loeb’s New York Times Op Ed (clearly crafted by his attorneys, btw) I came away being more uncertain than ever about what is the “right thing” to do in this case. Mr. Loeb makes a compelling if not emotional argument that he should get the embryos. But legally, can he persuade a judge to award him custody?
Sofia Vergara is a very popular South American actress who found fame on a popular American TV show.  Based on published reports, she and Nick Loeb met about five years ago and got engaged. He wanted to have a baby but she presumably was not ready to spoil her girlish figure (or was experiencing fertility issues) so she said yes to the baby, but only if a surrogate carried the infant.
The couple proceeded to fertilize her egg and his sperm in a petri dish and two implants were attempted into surrogates but did not take. The couple was left with two embryos which they froze for later implantation, presumably  into another surrogate. But then their relationship ended. The couple broke up and Sofia meanwhile moved on while Nick was left with a desire to bring the frozen embryos they created to life. (Apparently, the embryos are female, two potential little girls.)
Sofia meanwhile does not want to be a parent with Nick and wants the embryos to remain frozen till time immemorial. Nick feels that this would be tantamount to killing the girls. He is willing to absolve Sofia from all parental obligations and have her listed as “egg donor” on the resulting children’s birth certificate. Sofia would prefer not to have this situation – and on a certain level, it is perfectly understandable.
What is the court to do? Whose rights should trump whose rights here? There are four people involved: Nick, Sofia and the two potential persons in the petri  dish. If Nick wins, it is a triumph for one parent’s positive reproductive rights over the other. The right to be a parent is a constitutionally recognized right. If Sofia wins, it is a triumph for one parent’s negative reproductive rights. The right not to be a parent is also a constitutionally recognized right. If the persons in the petri dish are allowed to be born, then, their right to live and right to life is also a constitutionally recognized right.
Which is the right choice for the court to make? Let’s imagine a scenario of Nick winning custody of the embryos: If the embryos are given to Nick, his right to be a parent would trump Sofia’s right not to be a parent. But it would also recognize the right of the potential persons in the petri dish to live, and to have a life. Nick has said he would assume all parental responsibility if the girls come to life so Sofia would not have anything to  do with the children. Would this be ethically and legally defensible? Is it fair to Sofia?
On the other hand, if Sofia’s right not to be a parent trumps, her right would be given greater deference than the rights of all other persons involved. She does not want to be a mother to these potential girls and she should not be forced to be a mother. This is clear. Nobody should be forced to be a parent if they choose not to be.
The thing is, we have to ask ourselves this question: what or who is a parent? In my view, a parent is more than biology. For example, look at the recent case involving the View cohost Sherri Shepherd. She had no biological link to the child but she was considered to be the child’s mother and parent because it was her intent to be a parent to this child when the decision was made to implant the embryo into the surrogate. There are other even better examples of the complicated business of defining and identifying a “parent.” The point is, Sofia clearly had no “intent” to be a mother to these girls if they should come to term because she was not involved in the decision to implant these embryos into anyone. She said no to this. Thus, clearly, if Mr Loeb does get the embryos and they do come to term, he could not win any lawsuits against Ms Vergara for child support or anything else on the basis that she is the parent. She is not the parent. This clearly is not her intention. But the fact that she is not the parent and does not wish to be should not stamp out the wishes of the other party.
Vergara and Loeb had some kind of contractual agreement which basically said that both parties have to consent to bringing the embryos to life. He wants to set aside the agreement now that they have broken up and now that Vergara has made it clear she wants nothing to do with him and the embryos. Can he breach the contract?
This is an interesting idea. It seems to me that parties who find themselves in this predicament with embryonic custody disputes are often bound by contract law. I have always wondered why more people in these disputes don’t simply breach the contract and take their chances in a court of law? That is, unlike the person who wants the embryos destroyed who could be accused of a crime for destroying the embryos without court permission, the parent who wishes to preserve the embryos and have the child can choose to proceed (before the other party can involve the court) to bring the embryos to life without the consent of the other party (don’t ask just do!) and suffer no criminal consequences. In such a scenario, it seems to me that the only thing they could legally be accused of would be a breach of contract (assuming they obtained the embryos legally and properly, of course). Contract law is not punitive; so conceivably, if a lawsuit ensued, they may be ordered to pay the other person some money because it would be too late for injunctive relief. But it would be kind of icky for  the court to order monetary compensation for this type of breach so the only real risk would be heavy criticism in the court of public opinion for having the babies without the other person’s consent.  But so what?
In the Loeb/Vegara dispute, he could have breached the agreement and she probably would have sued him and probably would have won a lot of money as well as a lot of sympathy from her fans and he would have been treated like the octodad and a stalker.  Her argument would have been that he caused her emotional distress by having a couple of gorgeous babies that share her DNA. How much could she have won for that? Who knows. So he probably did the right thing by going to court rather than breaching the deal;  but he himself points out that with very few exceptions, the courts tend to side with the parties who want the embryos destroyed.
According to his op ed, though, Mr. Loeb had a bad accident years back and fractured his pelvis. This could be an extenuating circumstance that tips the scales in his favor. Who knows. Let’s wait and see what the courts decide.