In months past we detailed the saga of Mimi Lee and Stephen Findley and their battle for control of the frozen embryos they created during their marriage. Yesterday, a California judge ruled that the embryos would have to be destroyed pursuant to a written agreement the parties signed at the time of fertilization.
Lee had been diagnosed with cancer during the marriage. Prior to undergoing treatment for the cancer, which would render her infertile, she and Findley agreed to use his sperm and her eggs to create viable embryos that could be frozen for future implantation when Lee recovered from cancer. While Lee did beat the cancer, she lost her husband when he filed for divorce.
Lee had argued to the court that the embryos were her last chance to have a child with her own genetic material, and that she did not really pay attention to the language of the contract at the time of fertilization. Findley argued that Lee knew the terms of the contract, and further that to force him to become a father to a child and support that child against his wishes violated the Constitution.
While the case has garnered a great deal of attention because of similar situations couples face around the country, including Sofia Vergara and her ex-husband, and raises potential “big” legal questions dealing with parentage and support, the court in the Lee case decided to base her decision solely on contract law. She found that Lee knew the terms of the contract when she underwent the fertilization process, and that she knew that in the event of divorce the embryos would be destroyed. She found no evidence of fraud or coercion and enforced the agreement.
Lee will likely appeal the ruling, possibly to the California Supreme Court.
The ruling in this case is a strong reminder to couples considering freezing embryos to be sure to record their wishes for use or control of the embryos in the event of divorce.
If you have questions about frozen embryos and divorce, contact us – we can help.