Judge Rules Divorced Couple’s Embryos Must Be Destroyed

In the first ruling of its kind in California, a Superior Court judge in San Francisco has ruled that the frozen embryos a woman wants to use to procreate, over her ex-husband’s objections, must be destroyed.

The woman, 46-year-old Dr. Mimi Lee, says the embryos are her only chance at conceiving.

“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 write in her ruling, according to the Los Angeles Times. “The role of a court here at the intersection of a constitutional statute and the agreement of two competent adults is clear.”

Mimi Lee and Stephen Findley were married in 2010. According to the San Jose Mercury News, it was on the eve of their September wedding that they received the news that Lee had been diagnosed with breast cancer, prompting them to rush to UC San Francisco’s fertility center, where five of her embryos were reportedly cryogenically frozen and preserved.

According to the Times, Lee had signed an agreement there with her then-husband Findley–a wealthy investment executive–outlining that the couple would undergo fertility treatments to conceive using the embryos only if the couple had children together and raised them as a family, believing the embryos would be destroyed if their marriage was ever dissolved. The couple filed for divorce in 2013 and officially dissolved the marriage earlier this year.

Despite Lee’s testimony in court that she considered the fertility agreement as a mere medical directive, and to be non-binding, noting her belief that she could change her mind later, Judge Massullo called her argument not credible, suggesting Lee’s consent was given both “voluntarily and intelligently.” Lee is a Harvard-trained anesthesiologist and a Juilliard-trained musician.

The prevalence of such cases throughout the nation has left legal ethicists divided over the question of whether the spouse of a divorcing couple should still be permitted to procreate using the DNA of a spouse who no longer wishes to associate with their ex. The San Jose Mercury News points to a Chicago appeals court that, last month, ruled in favor of a woman in Lee’s situation, who was also deemed infertile due to cancer, saying she could use the embryo’s despite her ex-boyfriend’s opposition to it.

Massullo’s ruling, which directs UCSF to thaw and discard the embryos, would be stayed pending any appeals form Lee

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