Custody of Frozen Embryos After Divorce

There are several cases pending in California courts that will soon decide a very modern problem for married couples: which member of a divorced couple gets control (or custody) of their previously frozen embryos? For one San Francisco couple, this decision has been hotly contested.

Dr. Mimi Lee and Stephen Findley met while attending Harvard. They were married in 2010, but just before the wedding, Lee was diagnosed with breast cancer. She was told that a treatment she would be receiving to rid the cancer would likely cause her to become infertile. Shortly after their wedding in 2010, the couple had embryos frozen and signed an agreement with the fertility clinic that the five frozen embryos would be destroyed if they were to divorce. In 2013, Findley filed for divorce, which became finalized in April 2015. Lee, now 46, cancer-free and infertile, still wishes to bear biological children. Lee brought the issue to court, and at first glance, it would seem this case was easily solvable, based on the signed agreement. Lee argues differently.

Peter Skinner, the attorney for Lee, explained to NPR News, “She really doesn’t have any other realistic option to have a biologically related child, other than to use the embryos that she created for that very purpose.”

Lee further contends the agreement was not a binding contract between her and Findley but merely spelled out the clinic’s obligations to each spouse in regards to storing the embryos. Under this viewpoint, the document signed is classified as more of a consent form from the clinic and not an agreement between spouses, meaning Lee would be free to change her mind about the destruction of the embryos upon divorce. According to Lee’s Declaration filed prior to trial, she states, “I did not believe that either Steve or I were bound to the indications made on the consent form.”

In addition, Lee contends the agreement was not binding and is void as against public policy. This agreement, she argues, would violate her right to procreate, a personal “liberty” protected by the Constitution under former U.S. Supreme Court rulings.

Findlay’s attorney, on the other hand, views the public policy issue in Findlay’s favor. Citing to a case from Massachusetts, he argues allowing an ex-wife to bear children from the couple’s embryos against the father’s wishes would violate public policy in forcing the ex-husband to become a parent against his wishes.

Another difficult question for the courts here is whether or not a frozen embryo is even considered a child, for which custody can be sought and ordered, as Lee is requesting. Embryos may be argued as property of the couple, created by the couple during marriage and therefore to be divided upon divorce. The Judge for the Superior Court of California, San Francisco, is preparing to issue a verdict within the next 120 days.