In another case defining the legal frontiers of IVF treatment, a California judge has ruled against a divorced woman who wanted to implant frozen embryos created with now her ex-husband, who objected to their use. Instead, they must be thawed out and destroyed.
In an 83-page ruling, Superior Court Judge Anne-Christine Massullo upheld a consent form that was signed by the couple just prior to the procedure to extract eggs for IVF fertilization. Mimi Lee, 46, argued that she should still be able to use the embryos she froze with her former husband, Stephen Findley, 45, because they represent her best option to have biological children. The couple decided to freeze a batch of fertilized embryos when Lee received a breast cancer diagnosis days before their wedding in 2010.
Five years later, Lee is healthy enough to carry a child, but her marraige did not survive. Because of her age and the anti-hormone treatments required to treat her cancer, she is very likely to be infertile.
The couple's agreement with the UCSF Center for Reproductive Health stated that full ownership of the embryos would be transferred to one party only if other died. In any other circumstance, including divorce, the embryos would have to be destroyed. This prospect did not sit well with Lee, a former anesthesiologist turned concert pianist, who claims that she thought the form was a non-binding agreement.
Lee's lawyers attempted to argue that her right to procreate was protected by the constitution, but court refused to comment on the argument. The legal decision was treated as an issue of contract law and it was decided that the form was airtight and enforceable. (There have been other precedents to an ex-husband's input as well.)
Judge Massullo wrote in her ruling that, "it is a disturbing consequence of modern biological technology that the fate of the nascent life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles." She went on to say, "However, only an infinitesimally small percentage of the four million frozen embryos currently in storage in the United States are destined to be implanted and brought to life. There must be rules to govern the disposition of the rest."
The question of what to do with the eggs comes as the last issue in an acrimonious divorce between Lee and Findley. During court proceedings, Findley's lawyers claimed that Lee had once asked him how much the eggs were worth to him and hinted that she could turn a future child against him. A spokesperson for Lee said that she was disappointed in the ruling and considering an appeal.
To date, a dozen cases involving frozen embryos have been brought before high courts around the country and none have ruled to award an embryo to someone over their ex-partner's objections. In California, this case could set the precedent for a similar one currently being fought between TV star Sofía Vergara and her ex-fiancé Nick Loeb (he says he believes "life begins at fertilization" and wants custody).
Related: See Sofia Vergara who has gone through a similar struggle through the years:
Sofia Vergara over the years
Judge rules that frozen embryos don't survive a divorce
HOLLYWOOD, CA - NOVEMBER 4: Sofia Vergara attends Walk of Fame Star Ceremony Honoring Cristina Saralegui on November 4, 1999 at Hollywood Boulevard in Hollywood, California. (Photo by Ron Galella, Ltd./WireImage)
LOS ANGELES, CA - FEBRUARY 6: Sofia Vergara attends 14th Annual American Comedy Awards on February 6, 2000 at the Shrine Auditorium in Los Angeles, California. (Photo by Ron Galella, Ltd./WireImage)
Sofia Vergara (R) attends the first 'Lo Nuestro' awards hosted by Univision Spanish-language television on February 7, 2002 in Miami, FL. (Photo by Adrian Del Angel/Getty Images)
Sofia Vergara (Photo by Albert L. Ortega/WireImage)
Sofia Vergara (Photo by Jean-Paul Aussenard/WireImage)
Sofia Vergara (Photo by M. Caulfield/WireImage)
Model Sofia Vergara poses outside The Lounge club May 2, 2002 in West Hollywood, CA. (Photo by David Klein/Getty Images)
Sofia Vergara (Photo by Jeff Kravitz/FilmMagic)
Sofia Vergara (Photo by Dimitrios Kambouris/WireImage)
Sofia Vergara (Photo by Rodrigo Varela/WireImage)
Sofia Vergara during World Premiere Of MGM's 'BulletProof Monk' at Grauman's Chinese Theatre in Hollywood, California, United States. (Photo by Gregg DeGuire/WireImage)
MIAMI - SEPTEMBER 23: Sofia Vergara attends the 1st Annual Premios Juventad Awards at the James L. Knight Center September 23, 2004 in Miami, Florida. (Photo by Alberto Tamargo/Getty Images)
Sofia Vergara and Juanes at the James L. Knight Center in Miami, Florida (Photo by Rodrigo Varela/WireImage)
Sofia Vergara (Photo by Steve Granitz Archive 1/WireImage)
Sofia Vergara during 2005 Venice Film Festival - 'Four Brothers' Photocall at Casino Palace in Venice, Italy. (Photo by Goffredo di Crollalanza/FilmMagic)
MIAMI - DECEMBER 28: Actress Sofia Vergara shops on Lincoln Road on December 28, 2005 in Miami, Florida. (Photo by Gustavo Caballero/Getty Images)
Sofia Vergara during 2006 NCLR ALMA Awards - Arrivals at Shrine Auditorium in Los Angeles, California, United States. (Photo by Jon Kopaloff/FilmMagic)
COZUMEL, MEXICO - JULY 09: Sofia Vergara (R) and her son Manolo Gonzalez bring her birthday celebration to Cozumel, Mexico on July 9, 2012 in Cozumel, Mexico. (Photo by Jesse Grant/WireImage)
PLAYA DEL CARMEN, MEXICO - JULY 10: (EXCLUSIVE COVERAGE)(NO TABLOIDS) Sofia Vergara and her son Manolo Gonzalez celebrate her 40th birthday at the Rosewood Mayacoba on July 10, 2012 in Playa del Carmen, Mexico. (Photo by Jesse Grant/WireImage)
BEVERLY HILLS, CA - JANUARY 12: Actress Sofia Vergara (R) and Nick Loeb attend HBO's Official Golden Globe Awards After Party at The Beverly Hilton Hotel on January 12, 2014 in Beverly Hills, California. (Photo by Jeff Kravitz/FilmMagic)
BEVERLY HILLS, CA - JANUARY 12: Actress Sofia Vergara and son Manolo Gonzalez-Ripoll Vergara arrive at the 2014 InStyle And Warner Bros. 71st Annual Golden Globe Awards post-party at The Beverly Hilton Hotel on January 12, 2014 in Beverly Hills, California. (Photo by Gregg DeGuire/WireImage)
LOS ANGELES, CA - NOVEMBER 12: (L-R) Actor Joe Manganiello, actress Sofia Vergara and TV host Alex Trebek attend the celebratory dinner after the special tribute to Sophia Loren during the AFI FEST 2014 presented by Audi at Dolby Theatre on November 12, 2014 in Hollywood, California. on November 12, 2014 in Los Angeles, California. (Photo by Michael Kovac/Getty Images for AFI)
LAS VEGAS, NV - DECEMBER 31: Sofia Vergara and Joe Mangeniello attend New Years Eve dinner at Strip House at Planet Hollywood Resort & Casino on December 31, 2014 in Las Vegas, Nevada. (Photo by Denise Truscello/WireImage)
LAS VEGAS, NV - DECEMBER 31: Arnold Schwarzenegger, Heather Milligan, Joe Mangeniello and Sofia Vergara attend New Years Eve dinner at Strip House at Planet Hollywood Resort & Casino on December 31, 2014 in Las Vegas, Nevada. (Photo by Denise Truscello/WireImage)
MIAMI, FL - FEBRUARY 26: Sofia Vergara is on the set of Despierta America at Univision Studios on February 26, 2015 in Miami, Florida. (Photo by Gustavo Caballero/Getty Images)
LOS ANGELES, CA - JANUARY 25: Actors Joe Manganiello (L) and Sofia Vergara attend the 21st Annual Screen Actors Guild Awards at The Shrine Auditorium on January 25, 2015 in Los Angeles, California. (Photo by Ethan Miller/Getty Images)
LOS ANGELES, CA - AUGUST 25: Actress Sofia Vergara arrives at FOX, 20th Century FOX Television, FX Networks And National Geographic Channel's 2014 Emmy Award Nominee Celebration at Vibiana on August 25, 2014 in Los Angeles, California. (Photo by Valerie Macon/Getty Images)
LOS ANGELES, CA - AUGUST 25: Actress Sofia Vergara attends the 66th Annual Primetime Emmy Awards held at Nokia Theatre L.A. Live on August 25, 2014 in Los Angeles, California. (Photo by Jason Merritt/Getty Images)
WASHINGTON, DC - MAY 03: Actress Sofia Vergara attends the 100th Annual White House Correspondents' Association Dinner at the Washington Hilton on May 3, 2014 in Washington, DC. (Photo by Dimitrios Kambouris/Getty Images)