Divorced couple's embryos must be destroyed, US judge rules

A San Francisco judge has ruled that the frozen embryos of a divorced couple should be destroyed, despite the protests of the ex-wife.

Prior to the creation of the five embryos, Mimi Lee and Stephen Findley - then a newly married couple - signed a consent form at the University of California San Francisco (UCSF) Center for Reproductive Health, agreeing that if they divorced the embryos should be discarded.

The couple decided to create the embryos for cryopreservation in 2010 after Lee was diagnosed with breast cancer, for which treatment was expected to result in her infertility. The marriage broke down, however, and the couple separated in 2013.

Lee now wishes to use the embryos as she argues they represent her last chance to have genetically related children, and that the agreement violates her right to procreate. Findley, however, wants to destroy the embryos in accordance with their prior agreement, and has voiced concerns that his former partner would 'manipulate the child or children to extract money from him'.

Superior Court judge, Ann-Marie Massullo, held that the agreement signed by the parties at the time of storage should be given effect. 'Findley should be free from court compelled fatherhood and the attendant uncertainties it would bring,' she wrote.

She added that Lee does have the right to procreate in other circumstances, but not with Findley. The judge found it 'striking' that Lee had not attempted to freeze her eggs, which would not have contained Findley's genetic material, and highlighted that Lee is not completely infertile. A doctor testifying for the UCSF fertility clinic estimated that Lee has a zero to five percent chance of becoming pregnant.

Although the Californian courts have previously dealt with the disposition of frozen sperm, this was the first time the State has heard a case regarding the use of frozen embryos. Similar rulings in other US states have been mixed, but the courts have generally been slow to grant one person the right to use an embryo against the other progenitor's wishes.

However, where there is clear intent between the parties as to how the embryos should be used upon separation, whether in a written agreement or otherwise evidenced, the courts have generally followed this. In Illinois last year a judge awarded custody to an infertile woman who wished to use embryos against her former partner's wishes, on the basis of a prior agreement between the parties (see BioNews 808). The court adopted a 'contractual model', which was first applied by the Court of Appeals in New York. Only if such an agreement were absent would the courts generally balance the relevant interests of the parties.

Judge Massullo also held that a contractual approach was applicable given Californian state legislation in this area.

Another embryo dispute is currently being heard in the Californian courts involving 'Modern Family actress' Sofia Vergara and her ex-fiancé, Nick Loeb. Loeb is suing for control over frozen embryos the pair created in 2013, when they were a couple (see BioNews 800 ). Vergara's lawyer, Fred Silberberg, said that parties should not be able to change their mind after signing an agreement.

'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.

A spokesperson for Lee said that she was disappointed with the judge's decision and is considering her legal options.