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Assisted Reproduction

UCSF Ruling: Divorced Couple’s Frozen Embryos Must Be Thawed And Discarded

While we continue to pour through the 80+ page ruling, one important takeaway from the landmark decision just issued by Judge Anne-Christine Massullo in our embryo disposition trial is that an embryo disposition contract is valid and enforceable under California law. This decision should allay any concern clinics and patients have regarding the enforceability of their embryo disposition agreements.

“It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles,” Massullo wrote.

Dr. Mimi C. Lee, an anesthesiologist and musician, argued the embryos were her only chance to have a child of her own. Stephen Findley, her former husband, said he did not want to be tied to Lee for the rest of his life with a child and sought to have the fertility clinic agreement upheld. Massullo said the consent agreement was a binding contract.

“IVF clinics and individuals who participate in the IVF process must have some certainty about dispositional choices before embryos are created,” the judge wrote.

Lee, 46, discovered she had breast cancer just before her marriage and decided with Findley to create and store the embryos in 2010 to preserve her fertility. The couple divorced earlier this year, and her age now makes it extremely unlikely she could conceive a child. She testified during a trial in July that she considered the fertility clinic agreement a mere consent form, akin to a medical directive, and thought she could later change her mind.

But Judge Massullo said Lee signed the agreement “voluntarily and intelligently.” Massullo said she considered the embryos neither property nor human life. Instead, she wrote, they represented “the nascent stage of five human lives.”

Her decision generally followed rulings by courts in other states that have decided embryo disputes.

We will have some more thoughts on this ruling shortly but are obviously relieved that Judge Massullo embraced the arguments we made during the trial.


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