By Marisa Kendall, from The Recorder

With her eyes scrunched closed, her voice so shaky that the judge at times checked the transcript to make sure the pivotal testimony was being recorded, Dr. Mimi Lee told the story of the embryos she made with her husband five years ago, after being diagnosed with breast cancer.

For several hours over two days of testimony, Lee, 46, relived her recovery from a lumpectomy, further tests and then a mastectomy, as well as the urgent decision she made with her then-husband, Stephen Findley, to secure a chance at having their own children by freezing embryos. From across the courtroom, Findley, who wants the couple’s five frozen embryos destroyed, looked pained as Lee pleaded for “my babies and my potential family.” Those five tiny balls of cells are at the heart of a high-profile trial unfolding in San Francisco Superior Court. Stephen Findley argues he shouldn’t be forced to have a child with his ex against his will. Lee, whose breast cancer treatment likely left her infertile, argues that she has a right to the embryos because they represent her last chance to have children.

The question of who gets control over a couple’s embryos after a split is a new one for the California courts, but it’s an issue that’s becoming more prevalent. The ex-fiancé of “Modern Family” star Sofia Vergara filed a similar suit last year in Los Angeles, seeking control over the couple’s two frozen embryos. The U.S. Department of Health and Human Services estimates that there are more than 600,000 cryo-preserved embryos nationwide.

So far, most courts have sided with the party who doesn’t want to become a parent. But two recent decisions out of Pennsylvania and Illinois, both granting the prospective mother the right to use the embryos over the father’s objections, could bode well for Lee. Closing arguments in the case are set for Aug. 4.

Lee’s lawyer, Peter Skinner of Boies, Schiller & Flexner, said her case presents an issue of first impression in California, and the outcome likely will provide “greater clarity and understanding” of the legal issues surrounding in vitro fertilization.

“We haven’t come up with any guidance that’s directly on point in California,” he said in an interview.

Though the case raises issues of parental and reproductive rights, the central legal question of the trial is mundane: whether consent forms that the couple signed as part of the fertility treatment amount to a binding contract.Both sides have thrown some low punches. Findley has accused Lee of demanding as much as $2 million per embryo, and of using the couple’s potential children to blackmail Findley into giving her their shared Nob Hill condo. Lee says Findley told her he was “dying” to have kids, he just didn’t want to do it with her. She says he coldly refused to discuss the embryos after their separation.

Presiding Judge Anne-Christine Massullo, a former federal prosecutor who was appointed to the bench in 2006 by Gov. Arnold Schwarzenegger, hasn’t given an indication of how she will rule. During the most emotional moments of Lee’s testimony, Massullo shifted between taking notes and casting an expressionless gaze on the witness.

Lee, a pianist and part-time anesthesiologist, started out composed and polite on the stand, but broke down in tears for much of the second day of her testimony. Findley, who had broken his foot playing soccer prior to the trial, hopped to the witness stand on crutches.

The dispute boils down to whether Lee and Findley are bound by papers they signed before beginning the in vitro fertilization process in 2010, in which they designated that the embryos would be “thawed and discarded” in the event of divorce. If Massullo finds the agreement is not binding, she can use outside factors, such as Lee’s infertility, to determine which party has a greater interest in the embryos.

Findley, represented by Joseph Crawford of Hanson Crawford Crum Family Law Group, claims that the agreement should hold. Lee argues that the document is a medical consent form, not a binding contract between her and her ex-husband, and she can change her mind.

At first glance, the legal teams seem mismatched. Findley went the traditional route with Crawford, a family law attorney, while Lee has a team of trial lawyers from Boies, Schiller & Flexner. Skinner, the New York-based partner heading her legal team, is a former assistant U.S. attorney whose specialties include white-collar criminal defense and complex civil litigation—not family law. (Skinner replaced lead attorney Lee Wolosky on the case less than two weeks before trial, when Wolosky took an abrupt leave of absence from Boies Schiller to serve as the U.S. Department of State’s special envoy for Guantánamo closure.)

‘NOT AN IPHONE CONTRACT’

Lee and Findley met during the first week of their sophomore year at Harvard University, in 1988. They remained close friends for 20 years, before they began dating in January 2010. Findley proposed four months later with his grandmother’s engagement ring, on a New York City balcony he’d covered in rose petals. Ten days before the wedding, Lee was driving on Interstate 280, headed to work, when she got a call from her doctor informing her that a lump in her breast was cancer.

Lee’s treatment was expected to leave her unable to have children, so she and Findley decided to harvest her eggs, fertilize them and preserve the resulting embryos at the UC-San Francisco Center for Reproductive Research. But by the time Lee finally went into remission and began researching surrogates to carry their baby, the marriage was falling apart, and Findley filed for divorce in 2013.

Lee testified Thursday that she didn’t carefully read the in vitro consent form before agreeing to the “thaw and discard” option.

“So you routinely sign things without reading them?” asked Dean Masserman of Vorzimer Masserman, counsel for the University of California Regents.

Yes, sometimes, Lee replied. For example, she said, she never reads the contracts that come with her iPhone updates.

“Well, it’s not an iPhone contract, OK?” Masserman snapped, prompting one of several objections by Lee’s lawyers to his “argumentative” questioning.

The court joined the UC Regents as a party in the litigation, and the institution has aligned with Findley to protect the in vitro fertilization contract used by the USCF fertility center. If the contract is deemed unenforceable, the Regents argue, it will leave the clinic at a loss over what to do with thousands of frozen embryos.

During his testimony, Findley claimed that he felt “stepped on and run over” in the marriage, and he feared having to interact with Lee for the next 18 years if they have a child.

Skinner, Lee’s lawyer, questioned Findley’s motives.

“You’re essentially concerned that you’re going to have to contribute to a child’s financial well-being at some point in the near future, is that right?” he asked.

Findley, a finacial analyst, denied that money is his main concern. He said that if Lee wins and has his child, “there’s no way that I wouldn’t want to be involved in this child’s life.”

Lee’s lawyers have made it clear she isn’t asking him to co-parent or financially support a child. But Judith Daar, a professor at Whittier Law School in Costa Mesa and an expert on reproductive medicine, said a court still could determine Findley has an obligation to his biological child.

“It’s really not up to her,” Daar said, “to determine whether he will or will not be considered a lawful parent.”

THE FERTILITY FACTOR

Daar said that until recently, she would have put her money on Findley to prevail. A handful of appellate courts in other states have ruled on this issue, and in nearly every case the courts sided with the party that did not want to become a parent. Furthermore, judges have generally regarded the couples’ signed in vitro fertilization consent forms as contracts.

But two cases out of Pennsylvania and Illinois produced different outcomes. The courts in those states awarded embryos to women who were unable to conceive as a result of cancer treatments.

“Perhaps it’s a trend. Perhaps these cases are outliers. Perhaps California will disregard them,” Daar said. “But there is a little bit of light for the person who wants to use the embryos that really didn’t exist until very recently.”

Last month the Illinois First District Court of Appeal awarded custody of a former couple’s embryos to the woman, who was likely rendered infertile by chemotherapy treatment for lymphoma. The parties in that case were dating casually, and after her diagnosis, the boyfriend agreed to provide his sperm so she could one day have children. After they broke up, the boyfriend changed his mind and fought to prevent her from using the embryos. The court found the parties had an oral agreement allowing the girlfriend to use the embryos without the boyfriend’s consent, overriding the consent form, in which they opted to donate the embryos to another couple in the event of their separation.

In 2012, the Superior Court of Pennsylvania similarly sided with a woman whose breast cancer treatment likely left her infertile.

The superior court upheld the trial court’s ruling, finding the “wife’s inability to achieve biological parenthood without the use of pre-embryos is an interest which outweighs husband’s desire to avoid procreation.” The superior court added that the husband willingly provided his sperm, knowing a child could potentially result.

In that case, the parties hadn’t signed any documents that would determine what to do with the embryos in the event of a divorce.

According to Daar, embryo custody cases may become legal relics before long.

In 2010, when Lee and Findley visited the UCSF fertility clinic, their doctors told them they would have a much better chance of success if they froze embryos rather than unfertilized eggs. Five years later, freezing the eggs and sperm separately has become much more common, Daar said, eliminating the risk of an ownership dispute.

Abram Moore, a K&L Gates partner in Chicago who represents the woman in the Illinois case and Nick Loeb in the L.A. suit against Vergara, said that some courts have concluded that fertility clinic consent forms should never be considered contracts between the patients. “Typically,” he said, “these forms are signed in a rush, and often the parties are not given much choice regarding what happens to their embryos.”

IMAGE: Under questioning Friday from Boies Schiller associate Maxwell Pritt, Dr. Mimi Lee tearfully described decision to freeze her embryos amid her treatment for breast cancer. Vicki Ellen Behringer

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