Disputed embryos ordered destroyed

A judge ruled Wednesday that the frozen embryos of a divorced San Francisco couple must be thawed and destroyed despite the ex-wife’s desire — over her former husband’s objections — to use them to become pregnant.

The decision by Superior Court Judge Anne-Christine Massullo clarifies in an era of emerging reproductive technologies what happens to frozen embryos in California when one person in a dispute wants them and the other one doesn’t. The judge said that directives signed by the couple agreeing that the embryos be “thawed and discarded” in the event of a divorce must be respected.

“It is a disturbing consequence of modern biological technology that the fate of the

nascent life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles,” Massullo wrote in an 83-page tentative ruling. “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.”

The case heard this summer drew national attention as a test of spousal rights over frozen embryos.

Mimi Lee, 46, a former anesthesiologist turned musician, sought to use the embryos she and her former husband, investment analyst Stephen Findley, 45, froze prior to beginning treatment for breast cancer diagnosed just days before their September 2010 wedding. Given her age and the anti-hormone medications needed to treat the cancer, she was expected to be rendered infertile.

Fertilized embryos

The couple, who have known each other since they were undergraduates at Harvard University, quickly opted to undergo in vitro fertilization to preserve their chance at having biological children. The IVF procedure involves extracting a woman’s eggs and fertilizing the ovum with sperm outside the body. The fertilized embryos can then be frozen in liquid nitrogen for future use.

Before the procedure, the couple signed an agreement with the UCSF Center for Reproductive Health that said the embryos would be given to one of them only in the event of the other’s death, but were to be destroyed in other circumstances, including divorce.

Lee’s therapies eradicated the cancer, but her marriage to Findley did not survive. Findley filed for divorce in August 2013. Lee, wanting to take advantage of her last chance to have biological children, brought the matter of the frozen embryos to court, arguing that the agreement they had signed was not binding and violated her right to procreate.

Contract valid

She testified in court that the agreement was hastily signed and that such directives are not set in stone. Her former husband told the judge the couple had discussed wanting to have children together only if they were married to each other.

In her ruling, Massullo said the contract was valid. “It is undisputed that Lee never informed Findley or UCSF that she believed she would unilaterally change the directives,” the judge wrote.

Lee did not respond to calls or e-mails. In a statement, her attorneys said Lee “is disappointed with the court’s tentative ruling and is evaluating her legal options.”

Findley’s attorneys did not respond to requests for comment. The parties have 15 days to file objections. The decision becomes final after the judge reviews the objections and makes any changes, if necessary, to the opinion.

Stanford medical ethicist David Magnus was not surprised at the ruling, considering that state courts in such cases have made similar rulings.

Decision not surprising

Magnus said the courts have been reluctant to enforce parenthood on someone who does not want to be a parent and have put great weight on contractual agreements made in advance. “It’s just hard to imagine any circumstance in this case where the court would have ruled differently than it did,” said Magnus, who directs the Stanford Center for Biomedical Ethics.

In a similar high-profile case working its way through a California court, the ex-fiance of Sofia Vergara has sued the actress to keep her from destroying the two frozen embryos the couple created in 2013.

Beverly Hills attorney Fred Silberberg, who is representing Vergara, agreed with Wednesday’s ruling in the Lee-Findley case, saying that one party should not have the option to change his or her mind after the fact.

“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 in a statement.