A court battle between a divorced couple over the future of their frozen embryos began Monday with an attorney for the former husband accusing the woman of using the dispute to get money.
Dr. Mimi Lee, 46, a pianist and part-time anesthesiologist, married Stephen Findley, a wealthy executive, five years ago. Shortly before the wedding, Lee learned she had breast cancer.
Unsure whether the disease would make it impossible for her to have children, the couple went to a fertility center, where Lee’s eggs and Findley’s sperm created five embryos, now frozen.
Findley filed for divorce two years ago and wants the embryos destroyed. Lee, now infertile, wants to implant the embryos into a surrogate and have a baby. Without the embryos, she will never have a child who shares her genes.
The dispute — the final issue to be decided in the couple's divorce — went to trial in San Francisco County Superior Court on Monday. It will test the enforceability of consent agreements couples sign before obtaining reproductive technology and will probably make new law in California.
“While the vast majority of cases resolve in favor of the party wishing to avoid procreation, two recent decisions award the embryos to the woman who wished to use them to have a child,” Judith F. Daar, a professor at Whittier Law School, said in an email interview before the start of the trial.
In the cases won by the women, both had received a cancer diagnosis and were infertile, Daar said.
Another embryo dispute making its way through the California courts pits Nick Loeb against his former fiancée, actress Sofia Vergara. Loeb has sued Vergara in Los Angeles for custody of two embryos they created in 2013.
During opening arguments Monday, Findley’s lawyer accused Lee of blackmailing him and contended that she “tried to get $1 million to $2 million per embryo” from him.
Joe Crawford, the attorney, did not elaborate on the allegation, and a lawyer for Lee later said he did not know what Crawford had been referring to.
Crawford called Findley “a moral man.”
"If a child is genetically his … he will participate in the child’s life,” Crawford said. “But he fears 18 years of interaction with Dr. Lee.”
The two had an “extremely difficult divorce” marked by conflict over financial issues, Crawford said.
He argued that the consent forms signed by Findley and Lee at UC San Francisco Medical Center cannot be changed unless by mutual agreement. The couple agreed in those forms that the embryos would be destroyed if the couple divorced, but would go to Lee if Findley died, the lawyer said.
Maxwell Pritt, a lawyer for Lee, countered that she has a fundamental right to procreate and her “only chance to procreate” are those embryos.
Pritt told the court that Lee signed the forms in a “whirlwind” of life-changing events: marriage, cancer and fear of becoming infertile.
She did not consider the consent agreements a binding contract with Findley and never discussed the forms with Findley until he asked for a divorce, Pritt said.
He argued that the case would have broad implications for all women who want to assert their rights to have children.
Findley, the first witness, testified that both he and Lee had read the consent agreements before signing. She checked a box that said the embryos would be destroyed if they divorced, and both initialed the page, he said.
“I am a very detail-oriented person,” Findley said. “I read every document very carefully.”
After reading aloud from the agreements, Findley said they made it clear that the terms could be changed only with their joint approval.
He testified that Lee began to look into surrogacy in 2011, and he said he had expressed reluctance.
“I was concerned about our marriage at that point,” he said.
Findley is expected to return to the stand later in the bench trial, which is scheduled to end Thursday. The judge will have 90 days to decide the case, and the losing side is likely to appeal.
Lee has said she would waive any future child support from Findley and rear a child alone. But Whittier Law School’s Daar said that waiver “has no legal meaning.”
“The mere fact that the wife is agreeing to take sole responsibility for any resulting child does not alleviate the husband’s potential role in the child’s life,” the law professor said.