A San Francisco court made a decision regarding the future of a divorcing couples‘s frozen embryos. Mimi Lee was told that the five frozen embryos that she created with her ex-husband, Stephen Findley must be destroyed. San Francisco Superior Judge Anne-Christine Massullo said that the couple must abide by an agreement they entered when they were married. Findley and his attorney claim that the couple had agreed to discard the embryos if they were to ever separate. Lee acknowledges the agreement, but argued that the embryos were her last chance to ever have children. She claims that her doctor has advised her that a pregnancy would be risky after enduring cancer. Despite the controversial nature of the case, Massullo explained that the decision had to be made.
“Decisions about family and children often are difficult, and can be wrenching when they become disputes,” Massullo writes. “The policy best suited to ensuring that these disputes are resolved in a clear-eyed manner … is to give effect to the intentions of the parties at the time of the decision.”
The judge also made it clear that Lee would usually have the right to procreate, but she just can’t do it with anything involving Findley. Despite the decision, Lee’s lawyers sticks to the fact that her possible infertility makes a “compelling argument.”
“If you’re going to be giving up such a fundamental right as your ability to have your biological child going forward, you should have a little bit more of a rigorous test, a rigorous process than simply checking the boxes on a form like this,” Peter Skinner, a divorce attorney explained.
CBS San Francisco spoke to ethics expert, David Magnus. He explained why the legality of the couple’s agreement meant the court could not sympathize with Lee.
“The ethical framework that has been largely agreed upon has been that this is the sort of thing that’s ought to be worked out in advance as much as possible. And in this case, it was decided that in the event of a divorce, the embryos are not to be used,” Magnus said.
The embryos were being kept at the University of California, San Francisco. Upon creating them, the law states that a couple must sign a consent agreement that will explain the future of embryos if the couple is no longer together. When Lee and Findley signed their consent agreement, they both agreed that upon their divorce they would want the embryos to be thawed and discarded.
The couple did not know that one day they would be battling against each other in a bitter divorce case. Lee would have no idea that she would be diagnosed with cancer and left infertile. In their split, the couple had to make a decision about the embryos. Findley believed they would stick to their agreement. However, Lee wants to have the embryos implanted into a surrogate. Her defense argues that it is her right to have a child and this is her only option. Findley’s attorneys argue that Lee has simply been using the embryos as a way to blackmail her ex-husband. He claimed that Lee once said she would use a child to financially take advantage of him. While it is easy to sympathize with Lee’s infertility, legal experts say courts look at these types of matters as legally binding contracts. Even Judge Massullo wrote in her opinion said that she questioned Lee’s motives and found Findley’s worries to be “well-founded.” Their case could set the precedent for other situations of this type that might be brought into the courts.
The case is being heard without a jury and the proceedings could lead to a new law in California. The decision to have the agreement stand and have the embryos discarded. In her 83-page opinion, Massullo knew that her decision was controversial but believed that her ruling was the best way to handle these types of disputes. With so many emotions tied to this issue, Massullo writes that the best way to settle the matter is to adhere to the contract.
“The best policy for ensuring that such emotional disputes are resolved in a clear-eyed manner … is to give effect to the intentions of the parties at the time of the decision at issue.”
This case should be a lesson to any couple deciding to go through with frozen embryo process. The rising rate of this procedure means a rise in legal disputes. What will happen in the case of a divorce? It seems as if the courts will side with the person who does not want to keep the frozen embryo. It seems a bit harsh to force a non-consenting person to take on supporting a child. Legal experts say the most important part of entering a process like this is talking to an attorney and getting your wishes in writing. In the event of a divorce this will provide protection for all.