Embryos become collateral damage in nasty divorce spat

A California judge this week settled a divorced couple’s dispute over their frozen embryos by ordering them destroyed—even though the woman claimed they were her last chance at motherhood.

“It is a disturbing consequence of modern biological technology that the fate of the nascent human life … must be determined in a court by reference to cold legal principles,” Judge Anne-Christine Massullo wrote in an 83-page ruling that told the story of a post-modern romance, short-lived marriage, and bitter divorce that likely will end the lives of potential children before they are born.

Mimi Lee and Stephen Findley met at Harvard in 1988 and stayed in touch after graduation. He became a successful financier, she a neurosurgeon and anesthesiologist.

Lee testified at trial that while she thought about having children for many years, the demands of her career came first. She had four abortions over the years, the most recent when she was 37, because “she had not yet found the right person with whom she wanted to have a child,” the judge wrote.

In 2010, when Lee was 41, the pair reconnected. They got engaged and started trying to conceive. Just before their wedding, Lee was diagnosed with breast cancer. The couple decided to undergo in vitro fertilization (IVF) and freeze the embryos. They planned to wait a year before deciding what to do with the embryos because of Lee’s cancer treatment, both of them testified at trial.

California law requires couples to decide how they will dispose of unused embryos before they are created. At the fertility clinic at University of California San Francisco, Lee and Findley signed a form agreeing to thaw and destroy the embryos if they ever divorced. Findley testified he paid close attention to the form and considered it an important decision. Lee said she only scanned the paper and signed it without thinking, comparing it to the user agreement for downloading an iPhone update.

The marriage later fell apart, and Findley filed for divorce in December 2013. In the course of working out the divorce, Lee brought up the embryos several times—the first time wanting to talk about how much they were worth.

“Do I get $1 million for those? Two million for those?” Findley recalled her asking, in testimony she did not dispute. Findley also testified that later, after Lee decided she wanted to keep the embryos, she threatened to disparage him to their future children if he didn’t let her keep their condo.

“At some point, if we have kids from these embryos, you should be worried about what I’ll say to them if you’re not generous to me in my request,” she told him.

The judge said she believed the ex-husband’s side of the story because of multiple dubious statements and obvious lies Lee told during the trial. Findley worried his ex-wife would have the children and use them to extort money from him, a fear the judge said was credible. Most of all, the judge wrote, she didn’t buy Lee’s argument that she misunderstood the finality of the directive she signed about disposing of the embryos if the couple ever divorced.

“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 wrote.

She also called disingenuous Lee’s argument that, at age 46, the embryos represent her only chance to have children. Since having the embryos created in 2010, Massullo pointed out, Lee hasn’t done anything else to try to become pregnant.

The judge took a middle-of-the-road stance about the status of the embryos, saying they “represent the nascent stages of five human lives. They are not property, nor are they a fully formed human being.” The original agreement the couple signed stated, “We understand … all future decisions about their disposal must be joint decisions.”

Just as in the case of King Solomon, the judge ordered the children destroyed in the absence of parental agreement. Only in this story, there’s not yet a devoted parent ready to sacrifice for the sake of the children.

Massullo stayed the decision pending appeal; Lee’s attorney said she is evaluating her legal options and deciding what to do next.

The Associated Press contributed to this report.