Stephen Findley and Mimi Lee were quite a couple. 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.
But on the eve of their September 2010 wedding, Lee was diagnosed with cancer, casting a cloud over their dreams of having children. With aggressive treatment expected to render Lee 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.
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 as fertility technology becomes an increasingly common part of everyday life.
The drama is expected to unfold this week in San Francisco Superior Court, where 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.
While the trial breaks new ground in California, where the courts have yet to address the question directly, feuding couples in other states have forced the legal system to deal with the modern dilemma of deciding who gets to decide the fate of these stored embryos in the event of a split.
The most high-profile example has been the recent spat between Hollywood star Sofia Vergara and ex-fiancee Nick Loeb, who has sued for custody of their stored embryos. And a Chicago appeals court last month ruled in a high-profile case that a woman in Lee’s similar situation, left infertile by cancer, could use the embryos despite her ex-boyfriend’s opposition.
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.”
“We don’t think the sky would fall,” said Peter Skinner, one of her lawyers. “This is an issue of first impression in California, and there is a lot at stake.”
Findley’s lawyers could not be reached for comment, but in court papers they depict the case quite simply: 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. And 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 won’t seek financial support if the embryos produce a child.
“In this case,” Findley’s lawyers wrote, “the intent (was) clearly expressed: to discard the embryos in the event of divorce.”
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.”
Legal ethicists are divided over the question as it unfolds around the nation.
John Robertson, a University of Texas law professor and chair of the American Society of Reproductive Medicine’s ethics committee, said “the overwhelming case law” is to uphold signed agreements to dispose of frozen embryos in divorce.
But Judith Daar, a Whittier law professor, notes that courts have been split on the power of such signed consent agreements, saying of the 46-year-old Lee: “The disputed embryos represent that woman’s only clinical opportunity for genetic parentage.”
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. And 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.”
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.
