A Frozen Embryo Caught in the Middle of Divorce

We often talk about how kids get caught in the middle of divorce, innocent victims who had no role or part in the choice to divorce but suffer the consequences nonetheless.  Now, because of modern technology, frozen embryos are getting caught in the middle of divorce, with the implantation or destruction on the line.  A major battle of this type is currently playing out in the family court of San Francisco.

Dr. Mimi Lee and Stephen Findley married and had dreamed of having children together.  However, before they could begin a family, Dr. Lee learned she had cancer.  The treatment for her cancer would render her infertile, so if she wanted to have any chance at a child with her genetic material, she would have to harvest her eggs before she began treatment.  She did so, but rather than freezing her eggs she underwent in vitro fertilization with the sperm of her husband, and they together chose to freeze these embryos for implantation in a surrogate in the future, after Dr. Lee went into remission.  Critically, husband and wife signed an agreement that if they divorced, they both agreed that the embryos would be destroyed.

Dr. Lee beat her cancer, but her marriage did not survive.  In what has been an already two year fight, Dr. Lee and Mr. Findley are fighting over the frozen embryos as the central part of their divorce.  Mr. Findley wants them destroyed as they had agreed in writing.  Dr. Lee, knowing her only chance to have a child with her genetic material is with these frozen embryos, wants “sole custody” of the frozen embryos.

What can or should the court do?

Currently, all courts by law consider frozen embryos property and not life or even potential life with certain constitutional protections.  As such, states have either passed laws regarding ownership of the embryos or left it to courts to decide.  In doing so, individuals have little clear guidance as to the fate of frozen embryos from state to state.  The trend is clearly in favor of honoring a contract, and the interpretation and enforcement of the contract turns on matters such as informed consent and lack of coercion.  But public policy could play a role, as some states decide not to destroy the embryo.

Dr. Lee sees the case as her fundamental right to procreate, and without those embryos she will not be able to procreate, at least with her genetic material.

But Mr. Findley sees the case as a matter of contract – they both agreed that in the event of divorce the embryos would be destroyed.  Dr. Lee could have chosen not to agree to that clause and pursued other options, including harvesting her eggs or fertilizing with an anonymous donor, but she did not do so.  Also, Mr. Findley could argue that his freedom to procreate or not procreate as he decides is at issue too – he does not want to procreate with Dr. Lee if they are no longer married and giving the embryos to Dr. Lee forces Mr. Findley to procreate, to become a father against his will in violation of his express wishes at the time of fertilization.  Even if the court would find Mr. Findley has no legal rights to the embryo that would be become a child, he still would have offspring against his will.

These cases are extremely difficult and seem tragic and unresolvable – someone will definitely lose and suffer a long-term loss, either in the absence of a desired child or the presence of an unwanted child.

Because Dr. Lee is making this case about a constitutional right to procreate, it seems likely it could be headed to the appellate courts and even the U.S. Supreme Court at some point.

Should fertilized embryos be considered property governed by contract law or should constitutional rights to procreate or not procreate come into play?  Courts have shied away from the latter, and will likely continue to do so, even as this case tries to force the issue.

It will be interesting to watch how the family court handles this issue in California and to what extent other states follow the court’s lead.

If you have questions about frozen embryos and divorce, contact us – we can help.