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December 09, 2015 Practice Points

In Case of Divorce, Destroy the Eggs

By Leonard Wills

On November 18, 2015, in Findley v. Lee, Judge Anne-Christine Massullo of the San Francisco Superior Court ruled that a woman could not use frozen embryos after she divorced her ex-husband. This case represented the first ruling in California that addresses what happens to frozen embryos after a couple's divorce. Judge Massullo's ruling stands consistent with other "post-divorce embryo custody cases" in other jurisdictions such as New York, New Jersey, and Tennessee. However, three jurisdictions ruled in favor of women who argued that frozen embryos remained their only means to bear children.

In 2010, while still married, Mimi Lee and Stephen Findley decided to use in vitro fertilization (IVF) after Lee became diagnosed with cancer. California law requires that individuals using IVF sign a Consent and Agreement form (Consent Agreement) that sets forth advance written directives regarding the disposition of embryos. Before the IVF procedures, the couple reviewed and signed the consent agreement. The couple agreed to destroy the embryos upon a court decreed divorce. A few years later, the couple divorced and Lee still remained childless. She argued that she sought to gestate her embryos because the embryos provided her the final opportunity to bear children. Mr. Findley, asserted that the consent agreement signed in 2010 remained a binding and irrevocable contract.

Judge Massullo agreed with Mr. Findley, ruling that the consent agreement remained a valid and enforceable contract under California contract law. California appellate courts require that the written IVF consent agreement must establish the "clear intent of the parties." She ruled that the consent agreement in this case established that the intent of both parties was to dispose of the frozen embryos if the couple ever divorced. Contract law also requires that the "language of the contract" must be "clear and explicit." Massullo held that the consent agreement contained clear language and that both parties understood the essential terms and provisions of the agreement.

Currently, no federal regulations govern the disposition of frozen embryos after dissolution of marriage. With the rise in the use of IVF, similar cases involving the disposition of embryos are likely to arise. Each year more individuals decide to use IVF to conceive children. A recent study reports that in the U.S. more than 1.5 percent of children are conceived through IVF. Currently, states follow a "patchwork of legislative and judicial approaches" on the disposition of frozen embryos. Congress, however, can set forth laws to provide uniformity on the disposition of frozen embryos across state lines. California has been a pace-setter for IVF legislation in America, so although it remains to be seen what precedence will be followed, this case appears as a benchmark in the development of laws regulating new conception technology.

Keywords: minority trial lawyer, litigation, IVF, in vitro fertilization, embryo, consent agreement

Leonard Wills is with the U.S. Department of Homeland Security Federal Emergency Management Agency in Philidelphia, Pennsylvania.

The views in this article neither represent the official views of the United States government nor does the United States government endorse the views in this article.

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