SAN FRANCISCO, Calif. — A judge in California has ruled that the frozen embryos of a divorced couple must be “thawed and discarded,” after the wife said she wanted them but the husband did not.
Dr. Mimi Lee was diagnosed with breast cancer the day before her marriage to Stephen Findley in 2010, and so the couple decided to create and store embryos to preserve Lee’s fertility. In doing so, the two had to sign an agreement with a fertility clinic that the embryos would be destroyed if they divorced.
In 2013, Lee and Findley separated, and Findley filed for divorce. But Lee, now 46, said she still wanted her babies and that they were her only hope of ever having a child. Findley wanted the five embryos destroyed because he didn’t want to have a child with Lee.
Lee and Findley fought the matter out in court, where Lee said she had a constitutional right to procreate. Her attorneys explained that the embryos were preserved so that “motherhood would not be a casualty of cancer.” Findley said he wanted the terms of the agreement upheld.
On Wednesday, San Francisco Superior Court Judge Anne-Christine Massullo sided with Findley and rejected Lee’s assertion that the signed document was only a consent form that could be changed like a medical directive.
While expressing empathy for Lee, the judge said that the contract took precedence and was legally binding.
“The court holds that while Lee might have a right to procreate in other circumstances not before the court, she does not have a right to procreate with Findley,” Massullo wrote.
“IVF clinics and individuals who participate in the IVF process must have some certainty about dispositional choices before embryos are created,” she said. “It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.”
Lee’s attorneys are considering the legal options. Judge Massullo has stated that she will postpone her order for the embryos to be destroyed pending an appeal.
“I stayed focused on my babies [during the court battle] and that way that I’m their mom, and that really got me through,” Lee told ABC News with tears.