Now, a California trial court has weighed in on a case involving a divorced couple in which the ex-husband wanted the embryos destroyed while the ex-wife wanted to preserve them. The judge ruled in favor of the ex-husband, saying the two had signed a valid contract prior to receiving fertility treatment agreeing that in the event of divorce, the embryos would indeed be thawed and discarded.
The fact that the woman, a 46-year-old cancer survivor, may not be able to conceive again did not trump the contract.
“It is a disturbing consequence of modern biological technology that the fate of the nascent human life, which the Embryos in this case represent, must be determined in a court by reference to cold legal principles,” Judge Anne-Christine Massullo of San Francisco Superior Court wrote in the decision. “However, only an infinitesimally small percentage of the four million frozen embryos currently in storage in the United States are destined to be implanted and brought to life. There must be rules to govern the disposition of the rest.”
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As the decision noted, Steven Findley and Mimi Lee met at Harvard University in 1988. Findley became a financier; Lee, who studied piano at Julliard, became an anesthesiologist. Though they lived on different coasts, they became romantically involved in 2010. Almost immediately, they were faced with an important question: whether to have children. Both were, after all, in their 40s — Lee had also had four abortions, including one at age 37, because “she had not yet found the right person with whom she wanted to have a child.”
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“Lee explained to Findley that after recently spending time alone with her nephew, it taught her something about how much she wanted to be a parent, and that she was going to pursue legal action for the Embryos,” Massullo wrote. “Findley explained to Lee how difficult it would be for him to be forced to be a parent of a child outside of the marriage and suggested using a mediator to try and resolve the issue. Lee declined.” Findley also reported he “fears Lee would manipulate the child or children to extract money from him.”
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“The plain language of the Consent & Agreement establishes the intent of the parties,” the judge wrote. “Nonetheless, and even assuming the Court found it necessary to look outside of the document to determine the intent of the parties, Findley and Lee both testified at trial that the purpose of undergoing the IVF process was to preserve the option of having children together: not as single people.”
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“Findley’s right not to be compelled to be a parent with Lee outweighs Lee’s right to have a biologically related child.”
Judge Massullo also expressed “serious concerns about Lee’s credibility.” The conclusion: The court ordered the embryos to be destroyed.
What does this mean for others facing similar disputes around the country? The court declined to say whether there was a constitutionally-protected “right to procreate” or one “not to procreate.” It also declined to decide whether embryos are property.
