Divorced Couple's Embryo Feud Could Affect How Fertility Clinics Do Business

The couple had embryos frozen before women's cancer treatment.

July 14, 2015, 2:58 PM

— -- A divorced couple's battle for control over their frozen embryos could affect how fertility clinics approach freezing embryos, experts said of the precedents the case may set.

Mimi Lee and Stephen Findley had their fertilized embryos frozen after Lee was diagnosed with cancer because the treatment would make her infertile, according to the lawsuit obtained by ABC News. That was shortly before they were married. However, five years later, the couple is now divorced and Lee wants to use the embryos to have a child over the objections of her former husband, the lawsuit states.

The couple signed a directive at the time of fertilization that said the embryos would be destroyed if they get divorced, but Lee now wants to save the embryos, according to the lawsuit.

The trial to decide the fate of the embryos began Monday at the San Francisco County Superior Court.

Fertility experts say that the case could be a major test to see if such directives are enforceable.

Dr. James Goldfarb, division chief of endocrinology and infertility at University Hospitals Case Medical Center in Cleveland, said his institution always has couples sign directives for contingency plans for the embryos in case of an emergency.

"We always have patients sign a directive if one of them died, both of them died and if they had a divorce," Goldfarb told ABC News. "It’s always been questionable how enforceable those directives are."

He said it's unclear what clinics can do beyond the directive should the court side with Lee.

"This would definitely, I think, be of great interest to us," Goldfarb said, should there be a court decision in favor of Lee, noting that in previous cases, courts have generally found there is more right to not procreate than to use the embryos to procreate, Goldfarb noted.

Should the court in San Francisco side with Lee, more couples may decide to freeze unfertilized eggs rather than embryos to avoid potential legal battles, Goldfarb said. With current technology, a frozen embryo is more likely to result in a pregnancy than a frozen egg, he said, but the differences in success rates are slight.

"The gap is becoming much less," Goldfarb said. "Some of these people are engaged and not married and they want to use the fiance's sperm. I always say the egg freezing is almost as good, if you don't end up getting married."

PHOTO: Mimi Lee faces a historic court battle over the fate of her embryos after a divorce.
Mimi Lee faces a historic court battle over the fate of her embryos after a divorce.

Goldfarb said he hopes the coverage of this California case will encourage couples eager to have embryos frozen to take a minute to think about what they're signing. He pointed out that many of the couples who want to freeze embryos are doing so because the woman is undergoing cancer treatments, and as a result many do not take long to think about potential consequences of signing these directives.

Legal analyst Areva Martin said guidance from the court is needed for future cases.

"The court needs to give individuals more direction," she said. "It needs to give the fertility clinics more direction. What should be in those contracts that can make them impenetrable?”

Jeffrey Kahn, a bioethicist and deputy director for policy and administration at the Johns Hopkins Berman Institute of Bioethics, said the directive is designed exactly for this kind of scenario, and if the court decides it's not valid then couples may be left with little protection if they break up.

"These agreements are supposed to be [protective] ... avoiding exactly this issue," Kahn said. "You can't predict every twist and turn in your life."

ABC News' Jesus Ayala, Kayna Whitworth and Roger Lee contributed to this report.