The Fate of Frozen Embryos at Divorce

As times change and technology evolves, new issues are ever-present in divorce law. And, although at the center of almost every divorce lie deep emotions, the courts in making their decisions look at the laws and don’t take emotions into account.

When Dr. Mimi C. Lee found out that she had breast cancer just before her marriage to Stephen Findley in 2010, the couple decided to create embryos and have them frozen so as to preserve what might be her only chance to have biological children. Before the couple went to create the embryos, they signed a contract with the clinic. The contract stated that the embryos would be destroyed if they divorced.

Unfortunately, a mere 3 years later the couple separated. Their divorce was finalized in early 2015. Later, a judge had to decide the fate of their frozen embryos.

Dr. Lee wanted to keep the embryos, as they still may have represented her last chance to have biological children. Mr. Findley wanted the embryos destroyed, as he did not want the potential to be the father of a child with his now ex-wife, after a less-than-pleasant divorce from the woman. He asked that the court enforce the agreement they entered into at the time the embryos were created.

Dr. Lee argued that she had a right to procreate and also argued that she would agree to waive child support payments for any children created from the embryos. She further argued that she had a right to change the agreement that was entered into at the time the embryos were created.

The judge, who issued a tentative ruling in this case on Wednesday, November 18, disagreed. The judge recognized that although Dr. Lee certainly does have a right to procreate, she doesn’t have the right to do so with the unwilling Mr. Findley. Further, Dr. Lee’s claims that she would waive child support were meaningless as such agreements cannot be entered into in California. The judge found that the parties had to abide by the prior agreement, meaning that the embryos had to be destroyed as a result of the parties’ divorce.

It is certainly easy to sympathize with Dr. Lee, as cancer may have reduced her ability to have children on her own. The judge had to rule on a deeply personal matter in this couple’s lives, which may cause a greater impact in Dr. Lee’s life than it did in her now-ex-husband’s life, as he is now able to move on and can procreate if he so chooses. However, it makes sense that the Court cannot force this man, who does not want to become a father with his ex-spouse, to become a father anyways.

Interestingly, judges in other states have ruled differently on the same issue, and instead taken the woman’s side. This happened several years ago in Pennsylvania, where a court awarded frozen embryos to a woman with breast cancer over her ex-husband’s objections. And, a court in Illinois awarded frozen embryos to an infertile woman against her ex-boyfriend’s objections.

The difference is the law in California, which requires couples to decide up-front what happens to the embryos that they create in the event of separation or divorce. This is the first time a California court has made a ruling on this issue. The judge, in her written decision, had the following to say:

“Decisions about family and children often are difficult, and can be wrenching when they become disputes.”

“The policy best suited to ensuring that these disputes are resolved in a clear-eyed manner … is to give effect to the intentions of the parties at the time of the decision at issue.”

“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.”

Divorce is never easy, but having competent and understanding legal counsel in your corner can make a world of difference. Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding dissolution process. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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