By Marisa Kendall, From The Recorder

SAN FRANCISCO — They’ve ended their marriage, divided their cash, property and personal belongings, but one messy issue remains: what should be done with their five cryogenically frozen embryos?

Divorcing couple Stephen Findley and Dr. Mimi Lee faced off in San Francisco Superior Court on Monday over the fate of the embryos stored at the UC-San Francisco fertility center. Lee, a 46-year-old breast cancer survivor whose treatment likely left her infertile, is fighting to use the embryos as her last chance to have children.

“The right to procreate,” Lee’s lawyer, Boies, Schiller & Flexner associate Maxwell Pritt told the court during opening statements, “is one of the central liberties guaranteed by our Constitution.”

Findley wants to prevent Lee from having his child because, his lawyers argue, it would force him to continue some sort of relationship with Lee for another 18 years. His lawyer, family law attorney Joseph Crawford of Hanson Crawford Crum Family Law Group, accused Lee of using the embryos as blackmail in an attempt to win a financial advantage over her ex-husband in the divorce.

The outcome of the trial could help shape California case law.

“There are no California published opinions regarding the contested disposition of embryos in divorce proceedings,” Lee’s lawyers wrote in a pre-trial brief.

Findley’s lawyers argue the case is a simple contract dispute. The outcome will hinge on the consent form both parties signed in the fertility clinic waiting room, where they agreed that in the event of their divorce, they would ask UCSF to “thaw and discard” any unused embryos. Findley argues that agreement is binding, and must be enforced. Lee, an anesthesiologist turned pianist, argues the document is a medical consent form, not a contract between husband and wife. She wants the court to reject the agreement and instead use a balancing test to determine that she has a greater interest in the embryos.

Dean Masserman of Vorzimer Masserman represents the Regents of the University of California. The institution supports Findley’s position that the agreement should be honored.

Presiding Judge Anne-Christine Massullo, supervising judge of the court’s family law department, had to move the bench trial to a larger courtroom Monday to accommodate media interest.

Findley and Lee met as undergraduate students at Harvard University, according to a declaration submitted by Lee. The two had been friends for 20 years when they began a romantic relationship in January 2010. Findley proposed four months later, using his grandmother’s engagement ring.

Ten days before the wedding, Lee received a breast cancer diagnosis. The doctors told her the necessary treatment likely would render her unable to have children, so Lee and Findley decided to harvest her eggs, fertilize them and then preserve the resulting embryos at the UCSF Center for Reproductive Research so they could one day be parents.

About a year later, Lee began researching the possibility of using a surrogate to carry one of the embryos to term. But the marriage deteriorated before the couple was able to take the next step. Findley filed for divorce in 2013, and the couple went through the process of dividing up their assets. The court bifurcated the embryo issue, which is the last outstanding question pending in the divorce.

Pritt, who is representing Lee alongside Boies Schiller partner Peter Skinner, argued on Monday that Lee can’t be bound to a medical consent form filled out in 10 minutes. She was in a particularly vulnerable emotional state, simultaneously dealing with a cancer diagnosis and a new marriage, and wasn’t able to fully evaluate the terms of the agreement.

“The contract for their wedding venue got more attention” than the consent form, Pritt told the court.

Findley, the first witness, said he knew exactly what he was signing in the waiting room that day, and was well aware of the implications.

“I’m absolutely certain that I read every word of it,” he testified.

Findley said he and Lee had agreed they would want the embryos destroyed if they were to divorce.

Lee’s lawyers have made it clear she’s not asking her ex-husband to help raise or support a child. But Crawford, Findley’s lawyer, argued his client is a “moral man,” and would want to be involved in the life of a child that was genetically his.

“It has been an extremely difficult divorce,” Crawford said. “There’s huge conflicts in almost every interaction with this couple. And Mr. Finley is worried about continued interaction with her.”

Crawford also claimed Lee has tried to use the embryos to blackmail Findley into giving her control over a condo the couple shared.

Lee is expected to testify later this week.

IMAGES:

Peter Skinner, Boise, Schiller & Flexner

For more on this story go to: http://www.therecorder.com/id=1202732039962/Fate-of-Frozen-Embryos-at-Center-of-Divorce-Trial#ixzz3fsI3iVJL