It’s a situation that’s becoming all too common — and one in which the law is still grappling with modern technology. A couple, facing fertility problems or other health issues, decides to create frozen embryos for future use. Then, the couple splits, leaving the fate of the embryos in dispute. 

Now, a California trial court has weighed in on a case involving a divorced couple in which the ex-husband wanted the embryos destroyed while the ex-wife wanted to preserve them. The judge ruled in favor of the ex-husband, saying  the two had signed a valid contract prior to receiving fertility treatment agreeing that in the event of divorce, the embryos would indeed be thawed and discarded.

The fact that the woman,  a 46-year-old cancer survivor, may not be able to conceive again did not trump the contract.

“It is a disturbing consequence of modern biological technology that the fate of the nascent human life, which the Embryos in this case represent, must be determined in a court by reference to cold legal principles,” Judge Anne-Christine Massullo of San Francisco Superior Court wrote in the decision. “However, only an infinitesimally small percentage of the four million frozen embryos currently in storage in the United States are destined to be implanted and brought to life. There must be rules to govern the disposition of the rest.”

The ruling turned on the fact that the couple’s agreement was an enforceable contract as well as on questions about the credibility of the woman’s testimony. The judge rejected the woman’s argument that a constitutional right to procreate somehow trumped the contract.

The case recalled many others including a high-profile dispute between Sofia Vergara of “Modern Family” and her ex-fiance Nick Loeb. Earlier this year, Loeb explained the former couple’s dispute over custody of its frozen embryos in a New York Times op-ed.

“Why not just move on and have a family of your own?” Loeb wrote. “I have every intention of doing so. But that doesn’t mean I should let the two lives I have already created be destroyed or sit in a freezer until the end of time.”

As the decision noted, Steven Findley and Mimi Lee met at Harvard University in 1988. Findley became a financier; Lee, who studied piano at Julliard, became an anesthesiologist. Though they lived on different coasts, they became romantically involved in 2010. Almost immediately, they were faced with an important question: whether to have children. Both were, after all, in their 40s — Lee had also had four abortions, including one at age 37, because “she had not yet found the right person with whom she wanted to have a child.”

“Lee testified at trial that while she thought about having a child for many years, her career and the demands on her time took precedence,” the decision noted. “She said that it was not until she and Findley became romantically involved that she really wanted to start a family with him.”

Findley proposed in May 2010, and the wedding was set for September. The couple, though still bi-coastal, was already trying to conceive. But, the same month they were engaged, Findley discovered a lump in his wife-to-be’s left breast.

“At first Lee was not concerned but Findley continued to press her to seek medical care,” Massullo wrote. “During trial Lee explained that in hindsight she was very grateful.”

A lumpectomy, however, did not end Lee’s health woes. After further consultation with doctors, she decided to take the drug Tamoxifen for five years.

Faced with ongoing cancer treatment, Lee and Findley discussed their options for having a child. They agreed on in-vitro fertilization and, on Sept. 29, 2010, signed a document called a “consent and agreement.” It noted: “We understand that the embryos are subject to our joint disposition and, therefore, all future decisions about their disposal must be joint decisions.” The document also specified what would happen to the embryos should the couple divorce; Lee and Findley chose the option “thaw and discard.” Findley later said Lee made this choice, while Lee later said she could not recall.

As their marriage entered its second year — and began to fall apart — that one line in a mass of legal verbiage became crucial. After waiting a year to decide what to do with the embryos as Lee’s cancer treatment progressed, the couple briefly discussed surrogacy, then decided against it. And when they separated in 2013, the embryos’ fate took center stage when, in a conversation about the couple’s joint assets, as Findley testified, Lee asked: “What about the embryos?”

“I was caught off guard because I frankly didn’t think, naively, in retrospect, that the embryos were an issue in the divorce because I remembered the agreement we signed,” Findley said, recalling that Lee had speculated they might be worth up to $2 million dollars. “… I think I told her I’m not going to have that discussion, and I was — I, frankly, was kind of sick to my stomach.”

But the embryos were invaluable, it soon emerged.

“Lee explained to Findley that after recently spending time alone with her nephew, it taught her something about how much she wanted to be a parent, and that she was going to pursue legal action for the Embryos,” Massullo wrote. “Findley explained to Lee how difficult it would be for him to be forced to be a parent of a child outside of the marriage and suggested using a mediator to try and resolve the issue. Lee declined.” Findley also reported he “fears Lee would manipulate the child or children to extract money from him.”

Lee, meanwhile, had “age-related infertility,” a doctor testified. The doctor said her cancer treatment and use of Tamoxifen was unrelated — though Lee disputed that finding.

Faced with this mess — one that combined an emotional breakup, a fraught medical ethics question and novel legal questions — Massullo said, more or less, that a contract is a contract.

“The plain language of the Consent & Agreement establishes the intent of the parties,” the judge wrote. “Nonetheless, and even assuming the Court found it necessary to look outside of the document to determine the intent of the parties, Findley and Lee both testified at trial that the purpose of undergoing the IVF process was to preserve the option of having children together: not as single people.”

Moreover, the decision read, Lee’s contention that “she did not read the document, she sped read the document, or she did not recall reading various provisions of the document” were “not convincing.” The judge was also unconvinced by Lee’s argument that the “whirlwind” of her cancer diagnosis and quick marriage resulted in an “incapacity to contract.”

“Given Lee’s education, profession, and intelligence, the Court finds that her testimony that she did not intend to enter into a binding agreement was not credible,” Massullo concluded.

The ex-fiance of actress Sofia Vergara is defending his lawsuit seeking to take a pair of frozen embryos the couple created before separating brought to term. (Reuters)

Then came the rawest question tackled by the decision: whether Lee, 46, had the right to the embryos because they may offer her last chance to have a biological child. The court concluded:

  • “Lee failed to preserve her fertility between ages 43 and 45” — taking no steps to harvest additional eggs even though she knew her marriage was in trouble;
  • Lee’s cancer treatment may not have left her infertile;
  • Lee still may be able to have a child despite her age;
  • Findley “has legitimate concerns about parenting with Lee” — though “these concerns are not enough to dramatically weigh in his favor”; and
  • “Findley’s right not to be compelled to be a parent with Lee outweighs Lee’s right to have a biologically related child.”

Judge Massullo also expressed “serious concerns about Lee’s credibility.” The conclusion: The court ordered the embryos to be destroyed.

What does this mean for others facing similar disputes around the country? The court declined to say whether there was a constitutionally-protected “right to procreate” or one “not to procreate.” It also declined to decide whether embryos are property.

One legal expert expressed sympathy, but said the ruling made sense.

“Presumably, it would work the other way as well,” University of California at Hastings law professor told San Francisco’s ABC7. “Let’s assume the woman wanted the embryos to be destroyed because she doesn’t want these babies and the ex-husband said, ‘No, I want them.’ Presumably, the contract would still be enforced.”

Indeed, save for Lee and Findley — who did not immediately comment — the decision may mean nothing.

“The case itself doesn’t have that much precedential value as a legal matter because it’s a lower court decision,” Lisa Ikemoto, a bioethics professor at the University of California at Davis’s law school, told the New York Times. “But everybody has been waiting for a case to come up in California because there are so many clinics here.”

Fred Barbash contributed to this report.