When Mimi Lee and her ex-husband Stephen Findley created five frozen embryos with the assistance of a California fertility clinic in 2010, they didn’t do so with the intention of divorcing. The couple did divorce in 2013, though. And they did so prior to using the embryos they’d created. According to their agreement with the fertility clinic, in the event of their divorce, the couple’s embryos must be destroyed.
As USA Today reports, Lee chose to challenge both her ex-husband and the validity of the agreement pertaining to the frozen embryos as part of divorce proceedings filed in the Superior Court in the State of California. According to court documents, Findley told Lee he wanted a divorce, to which she responded that she wanted “one or more” of the embryos, to be used in an attempt to produce viable pregnancy. Findley declined her request, and Lee responded by asking for possession of the embryos as part of the couple’s divorce.
Superior Court Judge Anne-Christine Massullo tentatively ruled on November 18 that the legal contract the couple signed with the clinic was valid, and that the five frozen embryos in dispute must be “thawed and destroyed” in accordance with that contractual agreement. While Judge Massullo was very firm in her decision, she wasn’t without compassion or empathy. The judge’s ruling is “tentative” because it won’t be carried out until both sides have the opportunity to file additional motions in the case of the frozen embryos. However, in most cases, tentative rulings do become final.
“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.”
During the course of the case, Lee brought to the court’s attention a history of cancer, which has made it difficult for her to conceive naturally, arguing that the frozen embryos may be her last chance to have biological children. She also referenced her “right” to procreate in her attempt to get custody of the frozen embryos, which are currently being held by the University of California, San Fransisco.
The judge didn’t dispute the right of Lee to procreate. She did, however, state that Lee did not have the right to procreate with her ex-husband, Findley. Findley has stated that his reason for denying his ex-wife custody of the five frozen embryos in question is that he fears she may use them, or any viable children produced with their shared embryos, to get money from him in the future.
There have been cases in the United States where women have successfully sued sperm donors for child support and other financial compensation.
There is no federal law that clarifies or specifies how frozen embryos must be managed in cases of divorce. The actual legalities of IVF and the resulting frozen embryos are handled on a state-by-state basis, with contracts between IVF clinics and their patients being the standard legal foundation. Frozen embryos are not children under the law. Disputes over ownership of frozen embryos are generally handled as tort (contract law) cases, as opposed to being handled in family courts.
While the Lee frozen embryo case marks the first case in California to be ruled upon by a court of law, other states have handled cases pertaining to the ownership of previously frozen embryos. Within the last three years, judges in Pennsylvania and Illinois have both awarded frozen embryos to women who were otherwise incapable of having biological children. These awards were made despite the objections of the exes (one an ex-husband, the other an ex-boyfriend). There has been no word on whether those exes were legally on the hook monetarily for any children that may have resulted from those frozen embryos.
In the case of the Lee frozen embryos, which was heard in California, Judge Massullo stated that the state’s law is very clear about how frozen embryos must be handled in the case of separation or divorce. Under California law, couples must decide what is to be done with their previously frozen embryos if they split, something the judge argues they did decide when they signed the agreement with the fertility clinic.
While the future for these five frozen embryos seems bleak, Fox News is reporting that Mimi Lee may not have given up her legal battle just yet. Peter Skinner, a member of her legal team, released a statement expressing his client’s disappointment over the judge’s ruling regarding her frozen embryos. He added that Lee is currently reviewing her legal options.
judge rules in SF frozen embryo case. Agreement stands, Mimi Lee not entitled to embryos, based on early reading. details tk— Howard Mintz (@hmintz) November 18, 2015
IVF has become so commonly utilized for those struggling with infertility that there are currently over 4 million frozen embryos being stored in facilities throughout the United States. Many of these embryos are “leftover” embryos from successful IVF cycles, and they often linger in a state of perpetual cryogenic sleep, with many patients paying $600 per year or more to store embryos they will never use. How to handle these deliberately created frozen embryos in an ethical manner has become a hot-button issue. Their genetic progenitors must choose between paying to keep them frozen, donating them to science, donating them to other infertile couples, or thawing and destroying them.
Destroying frozen embryos is a very common practice in the U.S., and as the use of IVF continues to grow, so too will disagreements about how “extra” embryos should be handled, particularly in instances involving divorce and separation. Many are calling for more uniform legislation to address the growing issue of handling excess frozen embryos in the United States. Many more are wondering at the ethics that allows frozen embryos to be deliberately created only to later be deliberately destroyed.
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