San Francisco judge rules divorced couple’s frozen embryos must be “thawed and discarded”

By Dave Andrusko

Mimi Lee and her ex-husband Stephen Findley (John Green/Bay Area News Group)

Mimi Lee and her ex-husband Stephen Findley (John Green/Bay Area News Group)

San Francisco Superior Court Judge Anne-Christine Massullo ruled Wednesday that Mimi C. Lee must adhere to an agreement she’d made with her ex-husband to destroy five frozen embryos if the couple divorced.

The couple separated in 2013 and divorced in 2015.

In an 83-page ruling, Massaullo wrote, “It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.”

Lee may not use the embryos to try to have a baby, Massaullo held. Instead they must be “thawed and discarded.”

In the first such ruling in California, Massullo upheld a consent form Lee and her then husband Stephen Findley signed shortly after they married in 2010. “Lee discovered she had breast cancer just before her marriage and decided with Findley to create and store the embryos to preserve her fertility,” according to Maura Dolan of the Los Angeles Times.

After undergoing a lumpectomy, Lee decided to take the drug Tamoxifen for five years. The Washington Post’s Justin Wm.Moyer wrote today

Faced with ongoing cancer treatment, Lee and Findley discussed their options for having a child. They agreed on in-vitro fertilization and, on Sept. 29, 2010, signed a document called a “consent and agreement.” It noted: “We understand that the embryos are subject to our joint disposition and, therefore, all future decisions about their disposal must be joint decisions.” The document also specified what would happen to the embryos should the couple divorce; Lee and Findley chose the option “thaw and discard.” Findley later said Lee made this choice, while Lee later said she could not recall.

As you would expect, the background is immensely complex and tragic. Moyer’s story is especially in depth.

Judge Massullo’s opinion makes clear she was not persuaded by Lee’s testimony in July that Lee considered the agreement a mere consent form and that she could change her mind later. According to Dolan

“Given Lee’s education, profession and intelligence, the court finds that her testimony that she did not intend to enter into a binding agreement was not credible,” Massullo wrote.

Massullo said Lee signed the agreement “voluntarily and intelligently” and called it “striking” that Lee did not attempt to preserve her eggs when her marriage with Findley began to founder.

Although Lee’s chances of having a child at her age are low, they are “not a zero percent chance,” the judge said.

Massullo said Lee’s offer to waive child support was meaningless because such an agreement could not be enforced in California.

She said Lee’s failure to make more efforts to preserve her fertility showed she “was ambivalent about having a child both during and after her break-up with Findley” and called “well founded” Findley’s belief that Lee would use any child born of the embryos to try to get more money from him.

Although “No court in California has squarely addressed a dispute over the disposition of frozen embryos,” Massullo said her ruling was consistent with other court rulings. As she wrote (in legalize)

“The decisional law from sister states demonstrate the overwhelming consensus that in dissolution proceedings, where the gamete progenitors [the parents] express a clear intent as to the disposition of the embryos, that intent controls whether it is set out in a written agreement or supported by the evidence.”

According to Dolan, “In about a dozen other embryo disputes around the country, not one high court has decided to award an embryo to someone over the ex-partner’s objections.”