Judge Rules That Frozen Embryos Don’t Survive a Divorce

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IVF treatment
They aren't going anywherePhoto: Science Photo Library

In another case defining the legal frontiers of IVF treatment, a California judge has ruled against a divorced woman who wanted to implant frozen embryos created with now her ex-husband, who objected to their use. Instead, they must be thawed out and destroyed.

In an 83-page ruling, Superior Court Judge Anne-Christine Massullo upheld a consent form that was signed by the couple just prior to the procedure to extract eggs for IVF fertilization. Mimi Lee, 46, argued that she should still be able to use the embryos she froze with her former husband, Stephen Findley, 45, because they represent her best option to have biological children. The couple decided to freeze a batch of embryos when Lee received a breast cancer diagnosis days before their wedding in 2010.

Five years later, Lee is healthy enough to carry a child, but her marraige did not survive. Because of her age and the anti-hormone treatments required to treat her cancer, she is very likely to be infertile. 

The couple’s agreement with the UCSF Center for Reproductive Health stated that full ownership of the embryos would be transferred to one party only if other died. In any other circumstance, including divorce, the embryos would have to be destroyed. This prospect did not sit well with Lee, a former anesthesiologist turned concert pianist, who claims that she thought the form was a non-binding agreement.

Lee’s lawyers attempted to argue that her right to procreate was protected by the constitution, but court refused to comment on the argument. The legal decision was treated as an issue of contract law and it was decided that the form was airtight and enforceable. (There have been other precedents to an ex-husband’s input as well.)

Judge Massullo wrote in her ruling that, “it is a disturbing consequence of modern biological technology that the fate of the nascent life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.” She went on to say, “However, only an infinitesimally small percentage of the four million frozen embryos currently in storage in the United States are destined to be implanted and brought to life. There must be rules to govern the disposition of the rest.”  

The question of what to do with the eggs comes as the last issue in an acrimonious divorce between Lee and Findley. During court proceedings, Findley’s lawyers claimed that Lee had once asked him how much the eggs were worth to him and hinted that she could turn a future child against him. A spokesperson for Lee said that she was disappointed in the ruling and considering an appeal.

To date, a dozen cases involving frozen embryos have been brought before high courts around the country and none have ruled to award an embryo to someone over their ex-partner’s objections. In California, this case could set the precedent for a similar one currently being fought between TV star Sofía Vergara and her ex-fiancé Nick Loeb (he says he believes “life begins at fertilization” and wants custody).