Frozen Embryos Case in San Francisco Superior Court Could Set Precedent

A battle between ex-spouses over frozen embryos that could set a national precedent is scheduled to start Monday in San Francisco Superior Court.

Stephen Findley is suing his ex-wife Mimi Lee to prevent her from using five embryos the couple created shortly after their 2010 wedding. Now divorced, Findley argues that an agreement between the then-couple and UCSF, which performed the fertility procedure, stipulated that the embryos would be destroyed if the couple were to split up.

Lawyers for Lee, who was diagnosed with cancer after the honeymoon, counter that she should be able to preserve the embryos because they now, at age 46, represent her last opportunity to carry her own child.

Their signed contract could give Findley the upper hand. University of Texas law professor and American Society of Reproductive Medicine ethics committee chair John Robertson told Mercury News that to uphold such agreements to destroy frozen embryos in the event of divorce is "the overwhelming case law."

But this issue has never been addressed by California courts before, so the outcome may not be so predictable.

Lee Wolosky, a partner in Boies, Schiller and Flexner, which represents Lee, told San Francisco Chronicle, "The cases in other states have really come out all over the place. . . but no court has ever held against a woman for whom the embryos in dispute represent her only chance to have biological children."

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