Judge Finds That Frozen Embryos Won’t Survive a Divorce

A recent California court ruling confirmed the legal principles laid down almost two decades ago by a New York Court. At issue in both cases was the question: What to do with embryos that were created during the sunny days of wedded bliss before the storms came and divorce was on the horizon?

A California judge has ruled against a woman who wanted to implant frozen embryos that were created with her then husband. The judge issued a decree saying the embryos must be thawed out and destroyed.

Superior Court Judge Anne-Christine Massullo decided to keep in place a consent form the couple signed before the procedure to extract eggs for later IVF fertilization.

Mimi Lee,46, along with her then-husband, Stephen Findley, 45, decided to freeze the embryos when Lee was diagnosed with breast cancer just ahead of their 2010 wedding. Lee went to court to argue that she should still be able to use the embryos because they now represent her last, best chance to have biological children.

The agreement the couple signed in 2010 stated that full ownership of the embryos would be transferred to the surviving partner if one of them died. Divorce and any other circumstance would require the embryos to be destroyed. This idea was not well received by Lee, a former anesthesiologist, who claims she believed the form to be a non-binding contract.

Lee’s attorneys argued that her right to procreate was protected by the U.S. Constitution. The court didn’t comment on that argument but rather based its decision on contract law.

Judge Massullo wrote: “It is a disturbing consequence of modern biology technology that the fate of the nascent life must be determined in a court by reference to cold legal principles.”

The question of what to do with the eggs is the final step in a bitter divorce between Lee and Findley. During the proceedings, Findley’s lawyers stated that Lee had once asked him how much the eggs were worth to him. She hinted that she could turn a future child against him.

So far, a dozen cases involving frozen embryos have been brought before courts nationally, and none has ruled to award an embryo to someone over their ex-spouse’s objections.

New York

In 1998, New York State’s top court first entered the legal swamp of biomedical principles when it ruled a woman could not use her chilled embryos to fertilize herself without her ex-husband’s consent.

The Court of Appeals ruled unanimously in rejecting a lower court’s ruling that the 40-year old female should have the same freedom to decide the embryo’s fate as her ex-husband.

The seven-member court ordered that the couple, Maureen and Steven Kass, had to live by a agreement they both approved before their divorce in 1993 that required the consent of both before the embryos could be used.

At the time, the case was strictly observed by civil liberties groups, women’s organizations, biomedical ethicists and others who viewed it as an effort to broaden fundamental privacy ensconced in the 1973 Roe v. Wade decision.

The incident also illustrated how the quick pace of biomedical inquiry raised moral questions quicker than civilization can respond by developing a moral or statutory framework.

The decision in the Kass’s case was the earliest of its kind to reach New York’s greatest court. Days before, the NY State Health Department urged far-reaching reforms in regulating new fertility techniques.

A lawyer for Mrs. Kass, Vincent Stempel, said, at the time, that his client was saddened by the court’s decision.

“My client is devastated,” Stempel said. “She invested a lot and believed the embryos to be life.”

Other legal experts see the court’s ruling as providing a level of clarity in the muddied world of reproductive technology by handling the case as a contractual conflict.

“The court is honoring the contract and not treating frozen embryos as though they are a special class of property,” said Janet Benshoof, the president of the Center for Reproductive Law and Policy.