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Update: California Court Orders Destruction of Frozen Embryos

In California’s first decision to address the fate of frozen embryos after a couple’s divorce, a state judge in San Francisco on Wednesday ordered the destruction of five embryos after a man challenged his ex-wife’s right to use them.

The woman, Mimi C. Lee, a 46-year-old cancer survivor, argued that she would not have another chance to bear biological children. Dr. Lee, an anesthesiologist, discovered she had breast cancer shortly before her 2010 wedding to Mr. Findley, 45, an investment executive. Soon after their marriage, the couple went to a fertility clinic for in-vitro fertilization. At that time, they signed an agreement that the embryos would be thawed and destroyed if they ever divorced.

Lee testified during the trial that she thought the agreement was only a consent form that she could later change her mind. But the court did not believe her and described her as evasive and contradictory on the witness stand.

Judge Anne-Christine Massullo of San Francisco Superior Court upheld the signed agreement, stating:

“Decisions about family and children often are difficult, and can be wrenching when they become disputes,” Judge Massullo wrote. “The policy best suited to ensuring that these disputes are resolved in a clear-eyed manner — unswayed by the turmoil, emotion and accusations that attend to contested proceedings in family court — is to give effect to the intentions of the parties at the time of the decision at issue.”

Her ruling is consistent with other rulings across the country. Courts in eleven other states, have made a ruling in post-divorce embryo custody cases. And at least eight of them found in favor of the party who did not want the embryos used. One party’s right not to procreate has generally been upheld over the other’s right to procreate. This has been held even in cases where the couples did not sign an agreement as this couple in this case did. There have been three courts, however, that have ruled in favor of women who argued that their frozen embryos provided their only chance to have biological children.

The Lee-Findley dispute was the first case in California to address this issue. California is home to many in-vitro fertilization clinics, with hundreds of thousands of embryos stored throughout the state. Lawyers and doctors are patiently watching to see what precedent this case establishes, especially if it moves to a higher court. Lee has previously indicated that she would appeal the decision if she lost.