A judge ruled Wednesday that the frozen embryos of a divorced San
Francisco couple must be thawed and destroyed despite the ex-wife’s
desire, over her former husband’s objections, to use them to become
pregnant.
The decision by Superior Court Judge Anne-Christine Massullo clarifies
in an era of emerging reproductive technologies what happens to frozen
embryos in California when one person in a dispute wants them and the
other one doesn’t. The judge said that directives
signed by the couple agreeing that the embryos be “thawed and discarded”
in the event of a divorce must be respected.
“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,” Massullo wrote in an 83-page tentative ruling. “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 case drew national attention as a test of spousal rights over frozen embryos.
Mimi Lee, 46, a former anesthesiologist turned musician, sought to use
the embryos she and her former husband, investment analyst Stephen
Findley, 45, froze prior to beginning treatment for breast cancer
diagnosed just days before their September 2010 wedding. Given her age
and the anti-hormone medications needed to treat the cancer, she was
expected to be rendered infertile.
The couple, who have known each other since they were undergraduates at
Harvard University, quickly opted to undergo in vitro fertilization to
preserve their chance at having biological children.
The IVF procedure involves extracting a woman’s eggs and fertilizing the
ovum with sperm outside the body. The fertilized embryos can then be
frozen in liquid nitrogen for future use.
Before the procedure, the couple signed an agreement with the UCSF
Center for Reproductive Health that said the embryos would be given to
one of them only in the event of the other’s death, but were to be
destroyed in other circumstances, including divorce.
Lee’s therapies eradicated the cancer, but her marriage to Findley did not survive. Findley filed for divorce in August 2013.
Lee, wanting to take advantage of her last chance to have biological
children, brought the matter of the frozen embryos to court, arguing
that the agreement they had signed was not binding and violated her
right to procreate.
She testified in court that the agreement was hastily signed and that
such directives are not set in stone. Her former husband told the judge
the couple had discussed wanting to have children together only if they
were married to each other.
In her ruling, Massullo said the contract was valid. “It is undisputed
that Lee never informed Findley or UCSF that she believed she would
unilaterally change the directives,” the judge wrote.
In a statement, her attorneys said Lee “is disappointed with the court’s tentative ruling and is evaluating her legal options.”
Findley’s attorneys said both parties have 15 days to file objections.
The decision becomes final after the judge reviews the objections and
makes any changes, if necessary, to the opinion.
In a similar high-profile case working its way through a California
court, the ex-fiance of Sofia Vergara has sued the actress to keep her
from destroying the two frozen embryos the couple created in 2013.
Beverly Hills attorney Fred Silberberg, who is representing Vergara,
agreed with Wednesday’s ruling in the Lee-Findley case, saying that one
party should not have the option to change his or her mind after the
fact.
“The fact that material is cryogenically preserved should not give one party the ability to force the other into unwanted parenthood or to have to relinquish their right to their biological child,” Silberberg said in a statement
Source: SF Gate
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