A California judge will soon be asked to decide whether a woman can use frozen embryos against the wishes of her ex-husband to destroy them in a case that could set a new legal precedent in the nation’s most populous state.
Opening arguments were presented on Monday in the case between Stephen Findley and Mimi Lee, said Lee’s attorney Peter Skinner. He said he expects the judge to issue a ruling in the coming weeks.
Similar cases have been brought elsewhere in the country, but Skinner said such a case has not been decided before in California.
Skinner said just days before Findley and Lee got married in 2010, she was diagnosed with breast cancer. He said the couple decided to create several embryos and have them cryogenically frozen to ensure they could still have children despite Lee’s treatment.
The five embryos were created at the University of California, San Francisco’s (UCSF) Center for Reproductive Health and the pair signed a consent form that said the embryos would be discarded in the event of a divorce, he said.
Findley filed for divorce from Lee in late 2013 and the issue of what to do with the embryos became a flashpoint, Skinner said.
Findley wants them destroyed as per the agreement, while Lee wants to keep them as she became infertile after her cancer treatment and has no other path to biological children, according to court documents.
“Mimi is entitled to her own genetic property, which both parties preserved anticipating Mimi’s infertility following her cancer treatment,” Lee’s attorneys have argued in court filings.
Attorneys for Findley could not be reached for comment.
UCSF spokeswoman Laura Kurtzman declined to comment on the litigation, but said in a statement that the university generally has an interest in the “enforceability” of such agreements.
Actress Sofia Vergara, one of the stars of the hit ABC comedy “Modern Family,” is embroiled in a similar lawsuit over frozen embryos she created with her ex-fiance, businessman Nick Loeb.
In a New York Times column published in April, Loeb said after the pair split in 2014, he sought to take the embryos to have them carried to term – assuming all financial and custodial responsibility – but she refused.
Loeb is asking a Santa Monica, California, court to void a consent form stipulating how the embryos would be used.