A San Francisco woman Wednesday was denied custody of embryos she created with her estranged husband in a court ruling that upheld the validity of a consent form she signed specifying they would be destroyed in the event of a divorce.
Mimi Lee and her former husband Stephen Findley created the five embryos at a University of California at San Francisco fertility clinic in 2010 after Lee, then 41, learned she had breast cancer and would need to undergo treatment, according to the ruling Wednesday issued by San Francisco Superior Court Judge Anne-Christine Massulo.
At the time, they both signed a consent form that included a provision calling for the embryos to be destroyed in the event of a divorce.
The couple, who married in 2010 shortly after Lee learned of her cancer diagnosis, discussed using a surrogate to have a child but never took action. By August of 2013 they had separated, and Findley filed for divorce later that year.
The status of the embryos remained a sticking point, however, and eventually came to trial in July of this year.
Lee, an anesthesiologist, said that she wanted to try to have a child with the embryos, and argued that she had signed the consent form under the impression that it was, like a medical directive, not enforceable.
Findley, however refused his permission for her to use the embryos, citing his fear that she would use them for financial advantage against him. He asked the court to direct UCSF to destroy the embryos, as specified in the consent agreement.
Massulo found that the consent form was valid, and that Lee’s right to procreate did not trump Findley’s right to avoid being compelled to procreate against his wishes. She noted that if the situation were reversed, no court would require Lee to carry a child from the embryos or allow them to be implanted in a surrogate.
“What is at issue is not whether Lee has the right to procreate in general, but whether she has the right to procreate with Findley.”
Massulo noted that cancer treatment did not render Lee infertile and would not have prevented a pregnancy, according to testimony heard at trial. The primary cause of her infertility is age, Massulo said.
Massulo’s order will be stayed long enough to allow both parties time to appeal.