Fight Over Frozen Embryos Heats Up in SF Divorce Case

SAN FRANCISCO (CN) - A woman fought Tuesday to preserve the embryos created with her husband before they separated, as her lawyers argued that her constitutional right to procreate is in jeopardy since at 46 she is likely infertile.

The superior court judge listening to closing arguments in the couple's divorce must now decide whether to force a fertility center to keep the embryos frozen, or abide by the soon-to-be ex-husband's wishes and have them destroyed.

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 two went to the University of California San Francisco Center for Reproductive Health and made five embryos using in vitro fertilization.

As part of the clinic's process they signed papers that have been at the center of their dispute, including a "Consent & Agreement for Cryopreservation of Frozen Embryos." The document details the handling of embryos, calling for UCSF to "thaw and discard" them if the two separated or divorced.

Findley's lawyer argued to Judge Anne-Christine Massullo, who is presiding over the trial in family court without a jury, that the document is a straightforward contract with all the well-established elements.

Findley says he wants the embryos destroyed because that was their agreement and because he does not want to be forced into fatherhood.

Lee, who survived her cancer, says the document was not a contract but rather an advance medical directive which can be changed later by either party.

Lee's attorney Peter Skinner called the document a "frankenform." He described it as an atypical contract that may have shown the couple's intent when they signed it, but he said it was not a binding, irrevocable agreement.

Lee has two distinct rights, he said - the right to choose and the right to procreate - while Findley only the right to procreate.

"Hasn't procreation happened?" Massullo asked, referring to the embryos.

"I don't think Dr. Lee's right to procreate has been fulfilled," Skinner said, explaining that none of the embryos have been placed in his client's body.

Findley's lawyer, though, insisted that the couple was bound by a contract.

"Dr. Lee's position has been to avoid calling this a contract at all costs," said Thomas Kenney, adding that when two parties concurrently decide the same thing there is a contract regardless of what they call it.

"We, us, our," he said, "These words of shared understanding permeate these pages."

"Dr. Lee's cancer is a red herring," he said, adding that it had no relevance to the outcome of the case. He said Lee is not infertile due to cancer but because of her age, and that she could have undergone IVF over the last two years. He said Massullo's only task was to determine if a valid agreement exists.

As far as Lee's constitutional rights, Kenney said that pregnant woman have the right to choose, but not "frozen embryos sitting in a freezer down the street."

He said that a pregnant woman and an IVF embryo are not the same, and they don't have the same rights.

"We are talking about frozen assets," he said, and not about the integrity of Lee's body.

The Regents of the University of California, which operates the fertility clinic where the embryos are stored, also insisted that the couple had signed a contract.

Dean Masserman, representing the regents, said that unless the court ordered the embryos be thawed and destroyed, fertility clinics will never be able to destroy embryos.

"IVF centers will become tissue banks," he said.

Massullo asked him whether he thought people have the right to decide when they want to have a family.

The UC lawyer responded that Lee had signed away that right and asked, "What's the point of the agreement if it doesn't hold water?"

"I understand that she was going through a lot of stress. But she didn't check her brain at the door," he added, claiming that there was no evidence that Lee was confused when she signed the forms.

Massullo said she will rule after she receives proposed statements of decision, which must be filed by August 28.

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