Does The Right To Procreate Trump A Legal Contract?

A divorcing San Francisco couple garnered a lot of media attention last week after facing off in court to tie up their last — yet most important — loose end: What should be done with their five cryogenically frozen embryos? The outcome of this case could guide California case law and is one to watch for all Americans.

Stephen Findley and Dr. Mimi Lee married in 2010. Just 10 days before their wedding, Lee found out she had breast cancer and the treatment would likely leave her infertile. In case they could not have children the traditional way, the couple created five embryos at UC-San Francisco Medical Center. About a year into the marriage, Lee began exploring surrogacy for one of the embryos. However, the marriage deteriorated before the couple actually contracted a surrogate. Findley filed for divorce in 2013, and the couple went through the process of dividing up their assets. The fate of the eggs is the last item to settle.

Even though the couple signed a consent form at the fertility center, agreeing that in the event of their divorce, they would ask UCSF to “thaw and discard” any unused embryos, Lee now wants to use the embryos as her last chance to have children. Lee’s attorney states that his client’s right to procreate is one of the central liberties guaranteed by our Constitution and should outweigh the contract that she signed. He argues that she was in a vulnerable emotional state at the time of signing the form — reeling from a recent cancer diagnosis and entering a new marriage — and didn’t fully assess the terms of the agreement.

Conversely, Findley said they both knew what they were signing that day and argues that the agreement is binding and must be enforced. Lee, a physician herself, contends the document is only a medical consent form, not a contract between husband and wife. She wants the court to reject the agreement.

Findley doesn’t want Lee to have his child since it would force him to have some type of relationship with her for the next 18 years or so. Lee’s lawyers have made it clear she’s not asking her ex-husband for financial support or for help in raising a child, but Findley’s lawyer stated his client is a “moral man,” and would want to be involved in the life of a child that was genetically tied to him.

His lawyers argue the case is a simple contract dispute. The fertility center supports Findley’s position that the agreement should be enforced.

Lee’s lawyer stated that currently, there are no California published opinions regarding the contested disposition of embryos in divorce proceedings. This case is one to watch.

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