California Judge Orders Frozen Embryos Destroyed

By ANDY NEWMANNOV. 18, 2015

In the first decision in California to address a dispute over the fate of frozen embryos after a couple’s divorce, a state judge in San Francisco on Wednesday ordered the destruction of five embryos after a man challenged his ex-wife’s right to use them.

The woman, Mimi C. Lee, a 46-year-old cancer survivor, argued that she would not have another chance to bear biological children. But in 2010, when she and her husband at the time, Stephen Findley, took part in in vitro fertilization, they signed an agreement that the embryos would be destroyed if they ever divorced.

Judge Anne-Christine Massullo of San Francisco Superior Court upheld the agreement.

In January, Lynlee Weber testified against a legislative proposal to ban surrogacy contracts.Pregnancy for Pay: Surrogates and Couples Face a Maze of Laws, State by StateSEPT. 17, 2014

In February, Paulo and João of Portugal, where surrogacy is prohibited, went to Pennsylvania to meet their son, Diogo.Pregnancy for Pay: Foreign Couples Heading to America for Surrogate PregnanciesJULY 5, 2014

Angel Watts and her husband, Jeff, center left and right, and their four children visiting with Richard Galloway and his wife, Rayn, far left and right, recipients of Ms. Watts's six unused frozen embryos.Industry’s Growth Leads to Leftover Embryos, and Painful ChoicesJUNE 17, 2015

Chicago Court Gives Woman Frozen Embryos Despite Ex-Boyfriend’s ObjectionsJUNE 12, 2015

“Decisions about family and children often are difficult, and can be wrenching when they become disputes,” Judge Massullo wrote. “The policy best suited to ensuring that these disputes are resolved in a cleareyed 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.”

Her ruling is consistent with the pattern across the country. Judges in at least 11 other states, starting with Tennessee in 1992 and including New York and New Jersey, have ruled in post-divorce embryo custody cases. And at least eight of them found in favor of the party who did not want the embryos gestated.

One party’s right not to procreate has usually been considered to trump the other’s right to procreate, said a bioethics professor at the University of California, Davis, School of Law, Lisa Ikemoto — even in cases in which the couples did not sign an agreement as this couple did.

In three states, though, courts have ruled in favor of women who argued that their frozen embryos provided their only chance to have biological children — intermediate appellate courts in Pennsylvania and Illinois and a trial court in Maryland.

There are no federal regulations governing the disposition of frozen embryos created through assistive technology.

Professor Ikemoto said that California is considered a bellwether in matters of reproductive technology.

“The case itself doesn’t have that much precedential value as a legal matter because it’s a lower court decision,” she said. “But everybody has been waiting for a case to come up in California because there are so many clinics here.”

The University of California, San Francisco, where Dr. Lee’s embryos are stored, has more than 100,000 frozen embryos, a significant percentage of the several million nationwide.

Dr. Lee, an anesthesiologist, discovered she had breast cancer shortly before her 2010 wedding to Mr. Findley, 45, an investment executive. Soon after their marriage, the couple went to a fertility clinic for in vitro fertilization.

Lawyers for Dr. Lee and Mr. Findley did not immediately return calls seeking comment.

----------------------------------------------------------------------------------
CEBID - Centro de Estudos em Biodireito