SAN FRANCISCO (CN) - A woman lost her fight Wednesday for a court order to preserve the embryos she created with her husband at a fertility clinic before they separated.
Superior Court Judge Anne-Christine Massullo ruled that a consent and agreement form the couple signed in 2010 spelled out what would happen to the five embryos they made using in vitro fertilization.
The document details the handling of embryos, which have been frozen state through cryopreservation, and instructs The Center for Reproductive Health at the University of California, San Francisco to "thaw and discard" them if the two separate or divorce.
Days before Stephen Findley and Dr. Mimi Lee's 2010 wedding, Lee was diagnosed with breast cancer. Concerned that her cancer treatments would cause infertility, the couple made five embryos using in vitro fertilization. She survived cancer, but they divorced this April in proceedings that resolved all matters except the embryos.
In closing arguments , Lee's attorney called the consent and agreement a "Frankenform." He said it was not a contract, but an advance medical directive, which could be changed by either party. He called it an atypical contract that was not a binding, irrevocable agreement.
Findley's lawyer said it was a straightforward contract, and that his client should not be forced into fatherhood.
In an 83-page ruling, Massullo sided with Findley, finding that disposition of the embryos is controlled by a document they initialed 15 times and signed at the end.
California law required Lee and Findley to contemplate what would happen to the frozen embryos in a divorce, she said.
The clinic at UCSF stores approximately 100,000 frozen embryos, and all are subject to an agreement like the one Lee and Findley signed.
"Neither party contends that the relevant California statutes are unconstitutional and the court concludes that holding Lee to her agreement with Findley at the time of the procedure does not interfere with any constitutional right to procreate that she might have at this time," Massullo wrote.
Massullo found that while Lee might have a right to procreate, "she does not have a right to procreate with Findley, which is the issue presented."
"The policy best suited to ensuring that these disputes are resolved in a clear-eyed manner - unswayed by the turmoil, emotion, and accusations that attend to contested proceedings in family court-is to give effect to the intentions of the parties at the time of the decision at issue."
The judge concluded: "Findley and Lee jointly agreed that in the event of a judgment of dissolution of their marriage, UCSF would thaw and discard the embryos they created through the process of IVF. That dispositional directive has never been jointly changed, and this court is not free to re-write the clear terms of the Consent & Agreement."
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