Yet another frozen embryo battle

A man fighting to stop his infertile ex-wife from having children using their frozen embryos testified Tuesday that he felt “stepped on and run over” during their marriage and feared having to parent a child with her. Stephen Findley, a wealthy executive with an investment company, said Dr. Mimi Lee, his ex-wife, once put a dollar value on the embryos during a conversation about their divorce and joint assets.

San Francisco Superior Court Judge Anne-Christine Massullo will rule on the fate of embryos, and the losing side is expected to appeal. Lawyers in the case anticipate the judge will take several weeks before issuing a written decision. The disposition of embryos in such cases is a matter of state law, but California courts have not yet clarified the rules. In other cases, the party opposing procreation has generally prevailed. Two exceptions involved infertile women who had cancer and whose only chance at procreation involved frozen embryos.

This case has gotten wide coverage. The CBS Evening News (7/14, story 13, 1:55, Pelley) reported on an “unusual custody battle.” The Los Angeles Times (7/15, Dolan) reports in “LA Now” that “Lee has said the embryos are her only chance now of having a genetic child,” but “Findley has argued that she is bound by a written directive the couple signed at a fertility clinic calling for the embryos to be destroyed in the event of a divorce.” The ABC News (7/15, Mohney) website reports that the outcome of the trial “could affect how fertility clinics approach freezing embryos, experts said,” adding that “the case could be a major test to see if such directives are enforceable.”

On its website, CBS News (7/15, LaPook) reports that “Mimi Lee’s attorney is arguing that the medical consent form was not adequately explained and is not a legally binding contract between the couple.”

Lee testified that she considered a fertility clinic form she signed — agreeing to discard the embryos in the event of a divorce — a mere directive, not an ironclad contract. “I want my embryos,” she testified. “I want my baby.”

Lee said she did not carefully read the consent agreement she and Findley signed at the UC San Francisco fertility clinic. She viewed the form as an advance medical directive that could later be changed, she testified.

“I often speed read, and I don’t read every word, especially in forms like this,” Lee said.

Superior Court Judge Anne-Christine Massullo, who will decide the dispute, could rule that the agreement the couple signed amounted to a binding contract that must be enforced, or determine the outcome by weighing the interests of both parties.

RPMG’s IVF consent form regarding the disposition of frozen embryos in various circumstances is very clear. And why should an agreement signed by both parties not be enforceable. It’s just that circumstances change and folks change their minds. My advice is to read the agreement and really think this out before you sign and not assume that everything in the future will always be amicable.

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