Judge: Divorced California couple’s embryos can be discarded

A San Francisco judge ruled on Wednesday that a woman was not entitled to frozen embryos conceived with her now ex-husband in a widely-watched case over reproductive rights in the nation’s most populous state. In the agreement, they both said they would like the embryos “thawed and discarded” in case they divorced, according to court documents.

Magnus said the courts have been reluctant to enforce parenthood on someone who does not want to be a parent and have put great weight on contractual agreements made in advance. The paperwork said the embryos would be destroyed if the couple divorced.

In a similar high-profile case working its way through a California court, the ex-fiance of Sofia Vergara has sued the actress to keep her from destroying the two frozen embryos the couple created in 2013.

On the eve of their September 2010 wedding, Lee was diagnosed with cancer, prompting the couple to rush to UCSF’s fertility center, where five of her embryos were cryogenically frozen and preserved for a possible future with children. “Let’s assume the woman wanted the embryos to be destroyed because she doesn’t want these babies and the ex-husband said, ‘No, I want them.’ Presumably, the contract would still be enforced”. Lee had argued that she had a right to change the agreement, and that she had a right to procreate.

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 they would be discarded in the event of a divorce, the ruling said.

“Decisions about family and children often are hard, and can be wrenching when they become disputes”, the judge wrote. The judge declined to rule on Lee’s assertion she had a constitutional right to procreate, but said Lee didn’t have a right to procreate with Findley. He said their divorce had been acrimonious and he did not want to be tied to Lee for the rest of his life with a child. Her lawyers told Massullo that Lee went through freezing the embryos to ensure “motherhood would not be a casualty of cancer”.

On the fertility question, Lee presented an expert who said a woman of her age had 0.03 percent chance of having a child. Another doctor testifying for the fertility clinic estimated that Lee’s chance of becoming pregnant was between 0 percent and 5 percent. Lee issued a statement saying she is disappointed and is evaluating her legal options. She had indicated previously that she would appeal if she lost.

Attorneys representing Lee and Findley could not be immediately reached for comment.