— -- A California couple faces a court battle as they fight over the fate of their embryos following a divorce.
Mimi Lee and Stephen Findley, both Harvard-educated, decided to freeze embryos after Lee was diagnosed with cancer because her treatment would render her infertile.
At the time, the couple signed a consent form with a fertility clinic directing that the embryos be destroyed if they divorced.
Five years later, Lee, a doctor and Juilliard-trained pianist, and Findley, a financial analyst, find themselves on opposing sides of the case, with Lee hoping to keep the embryos. In court documents obtained by ABC News, Lee says the embryos “now represent … the destruction of my last and final chance at fertility.”
“She’s currently infertile, given her age, and she’s also a cancer survivor, but we think given her infertility, that the balance is going to tip in her favor,” Lee’s attorney, Peter Skinner of the firm Boies, Schiller & Flexner LLP, said.
According to the “Declaration of Mimi Lee” included in the court documents, she and her former husband “checked off boxes indicating that the UCSF was to ‘thaw and discard’ any viable embryos for almost all of the scenarios presented, with the exception of Steve’s death, in which case the embryos would be transferred to me. I did not believe that either Steve or I were bound to the indications made on the Consent Form.”
Findley is in court to argue otherwise, though he and his lawyer said they will not comment publicly until after the trial, which began Monday in San Francisco County Superior Court to address the enforceability of consent agreements like the one the couple signed.
Lee, 46, says Findley, who wants the embryos destroyed, would have no parental responsibility.
Legal analyst Areva Martin said guidance from the court is needed. “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?”
The California case, which could make new law in the state, draws comparisons to actress Sofia Vergara’s legal battle with ex-fiance Nick Loeb, who wants to use their frozen embryos despite Vergara’s reservations. Loeb has filed a second lawsuit seeking custody of the frozen embryos.
In Lee’s case, her moral argument is an intriguing one, but it’s a tough argument to win, given the consent form, ABC News chief legal analyst Dan Abrams said.
Abrams said it’s important for couples who freeze embryos to address the possibility of divorce or death to better protect themselves from similar circumstances.
“Couples need to reach a written agreement together, not with the fertility clinic, but between themselves – a separate contract, in effect,” he said.