A battle over the fate of five frozen embryos continues in a San Francisco court room – and it could lead to new California law.
The divorce of Stephen Findley and Dr. Mimi Lee has made national headlines. Just prior to the couple’s marriage in 2010, Dr. Lee discovered that she had breast cancer. Knowing that treatment would likely render her infertile, the couple decided to seek treatment at the fertility center at the University of California San Francisco, and ultimately five of Lee’s eggs were fertilized and frozen for future implantation.
Since then the couple has filed for what has been called a very difficult divorce in 2013. While all other matters in the case have been decided, the couple cannot agree on the fate of the frozen embryos. For 46 year old Lee, the embryos represent her last opportunity to have children and is fighting for her right to have them implanted in a surrogate carrier. Findley her former husband, is arguing that a consent form signed at the fertility clinic mandates that the embryos be destroyed in the case of a divorce. It’s now up to a California state judge to decide.
The Findely-Lee divorce is not the first case to consider this issue as the law struggles to catch up with advances in medical science. Here are three new questions the future of frozen embryos raise about divorce in the United States.
Is a Boiler Plate Consent Form Enough?
When Lee and Findley started fertility services at UCSF, they signed a consent form that detailed what would happen to the frozen embryos under certain circumstances. This included that in the case of divorce, the embryos would be thawed and destroyed.
Dr. Lee argues that the consent form was generic boiler plate with boxes to check for the different options. She did not believe that it was a binding agreement that she could not change later. She compared the form to the terms of service that must be agreed to in order to use software. Mr. Findley testified that he believed the document was a binding agreement and that his ex-wife has changed her understanding of the document because of the divorce.
Regardless of how this case is decided, it is important for couples to carefully evaluate any documents signed during fertility treatment. While it may look like the form you agree to for iTunes, forms signed in a fertility clinic can have a long lasting effect. You may find yourself a father long after a divorce.
It may be that the generic form the clinic offers you is not enough. If you are considering fertility treatment with your current partner, especially the freezing of embryos, it would be wise to speak with a family law attorney. Drawing up a specific and personalized legal agreement for you and your partner will make sure everything is clear in the case of a divorce.
What About the Right to Have Children?
Deciding whether or not to enforce a signed document is a fairly straight forward legal decision, but when frozen embryos are involved, the decision takes on additional ethical issues which make it more complicated. Dr. Lee’s attorneys argued that these frozen embryos are her last opportunity to have genetic children and that destroying them will destroy her ability to reproduce. So the question is, can a signed document be enforced if it ends someone’s reproductive rights?
The court’s decision in this case, and in future fertility cases where science and technology are involved, could redefine our understanding of reproductive rights.
Who is Responsible for the Well Being of the Unborn Child? How will Child Support be Decided?
Since Mr. Findley and Dr. Lee currently have no children, there were no provisions for child support, custody, or visitation in their divorce agreement. Findley has argued that he is concerned about future financial liability to his ex-wife if the embryos are preserved and result in successful births. Though Lee has stated that she will not seek any support from her ex-husband if children are born from the embryos, Mr. Findley has good reason to be concerned: he could go from having no children to having as many as five if the court rules for Dr. Lee, and despite any agreements now, a future court could order him to pay child support.
This issue should raise concerns for all parents using fertility treatments. The Findley-Lee divorce is unique because Lee was only able to produce a small number of eggs due to her medical condition. Standard fertility treatment can result in many more. A divorced couple could easily have 10-20 frozen embryos in storage, opening up the possibility that children could continue to be born out of the union years after a divorce becomes final. This is a new area of law for which issues about child custody and support still need to be decided.
For now, the nation is waiting to see how the judge in the Findley-Lee case is going to rule and what the ultimate fate of the frozen embryos will be. This case may set new law in this issue. It is very clear though, that fertility technology is changing divorce law. If you are considering fertility treatments with your partner, don’t take generic consent forms for granted. Sit down with a family law attorney and make sure you are both on the same page about the future of any frozen embryos.