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Assisted Reproduction

‘Groundbreaking’ Embryo Case Draws Fresh Attention to Law Regulating IVF Treatments

Turn on your TV this week or open up your internet, and you’re sure to come across the San Francisco frozen embryo case. Stephen Findley and Mimi Lee underwent in vitro fertilization treatments at UCSF’s Center for Reproductive Health and froze five of their embryos. Now that the couple has divorced, Findley wants the embryos discarded; Lee would like to use the embryos. The national media has been calling their case “groundbreaking.”

But is it really? Having worked with assisted reproduction for decades, this case, at its essence, is really nothing more than a standard contractual dispute. Before undergoing the IVF treatments, Findley and Lee signed a legal contract at UCSF stating if the couple broke up, they were committed to disposing of their remaining embryos. Creating and signing these agreements is a standard step at any reputable California fertility clinic. In fact, these embryo disposition agreements are required by law.

California Health and Safety Code § 125315 states that fertility clinics “shall provide a form to the male and female partner … that sets forth advanced written directives regarding the disposition of embryos.” The Code is quite comprehensive, laying out numerous options for couples to select “[in] the event of separation or divorce of the partners” — everything from making the embryos available to one of the partners, to donating the embryos, disposing of them, or crafting their own action plan for the unused embryos.

By entering into a disposition agreement for the unused embryos, UCSF, Findley and Lee complied with this law.

The question in this case, then, is not a groundbreaking debate about “Whose embryos are they?” It’s really a simple, contractual matter: Findley and Lee signed and agreed to an embryo disposition plan. Now the court is called upon to support that action plan — and validate the wisdom of our state’s thoughtful, comprehensive safety code — by holding both parties to their signed agreement.

If there is a lesson to be learned from this case, it should be that it is essential that everyone proceeding with any form of assisted reproduction, have a valid and enforceable Reproductive Estate Plan in place.

As the trial continues, you can follow live updates on Twitter at @FamilyLawLA.


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