Loeb has launched a legal claim to the embryos after alleging the Modern Family star wanted to destroy the eggs they had frozen when he and Vergara were a couple, revealing he is keen to bring them to term. The actress' lawyer has disputed his statements.

On Tuesday (27Oct15), the 43 year old's lawyers headed to court to argue a section of the penal code that states if a person uses another person's genetic material without their permission, it is illegal. However, the judge denied the motion, allowing the case to move forward.

It is unclear when the case will head to trial, but Vergara's legal team has one more chance to challenge the lawsuit before the court date, according to the New York Post.

Vergara and Loeb split last year (14). She is now engaged to wed Magic Mike star Joe Manganiello.