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Destroy or Not? Frozen Embryos at Center of California Divorce War

San Francisco, California, UNITED STATES

Stephen Findley and Mimi Lee had big plans when they wed… He was a Harvard-educated executive at a Bay Area global wealth management firm, worth millions. She studied piano at Julliard, earned degrees from Harvard and became a doctor specializing in neuroscience.

However, on the eve of their September 2010 wedding, Lee was diagnosed with cancer and anticipating aggressive treatment expected to render her infertile, the couple rushed to UCSF’s fertility center, where five of Lee’s embryos — fertilized by Findley — were cryogenically frozen and preserved for a possible future with offspring. [Howard Mintz, Contra Costa Times.]

Now, the couple is in the midst of a bitter divorce — and those embryos, still stored at UCSF, are at the heart of an unprecedented legal battle that could determine how California deals with such conflicts.

This week in San Francisco Superior Court, a judge is conducting a trial set to begin Monday that pits Findley’s wish to have the embryos destroyed against Lee’s quest to preserve them as her only way to bear a child.

In Lee’s case, her lawyers are urging Superior Court Judge Anne-Christine Massullo to find that destroying the embryos would destroy an infertile woman’s ability to “realize the fundamental and constitutionally protected bond of a parent and a child.”

Findley’s position is that the couple signed documents at UCSF that included provisions for destroying the embryos under various circumstances, including divorce, and those agreements are a binding contract. In addition, Findley has testified in pretrial proceedings that he would be troubled psychologically by having a child produced from the embryos, and worries about forced parenting obligations, even though Lee has offered assurances she will not seek financial support if the embryos produce a child.

UCSF, meanwhile, is caught in the middle, but appears to take the position that its signed directives should be considered “valid and enforceable” by the courts. “A party cannot simply change his or her mind at any time and unilaterally revoke a directive created … with another party, at least not without some material change in circumstances or other compelling reason.”

Both Lee and Findley are expected to take the stand this week to tell their stories. They’ve already settled the financial part of their divorce. Now comes the hard part. In addition, Lee’s legal team indicated whatever the San Francisco judge decides, higher courts will have the final say.

“This court,” Lee’s lawyers wrote recently, “must decide whether the law forbids Mimi from using her eggs, which she froze and fertilized for the purpose of preserving her fertility after being diagnosed with cancer, in order to have a child where she is otherwise unable to do so, simply because her ex-husband objects.” [SF Chronicle]

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