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Ex-husband testifies in first day of SF court battle over frozen embryos

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Dr. Mimi Lee. (Courtesy photo)

A trial that will likely set a precedent on cases involving divorcees at odds on the fate of their frozen embryos began Monday with the ex-husband testifying he carefully read and signed forms stating the embryos would be discarded should their marriage terminate.

On the other side aisle, the ex-wife’s attorney claimed his client’s constitutional right to biological children overrides her former husband’s unwillingness to be the father.

Monday’s key testimony came from Stephen Findley, 45, a financial analyst who wed Mimi Lee, 46, a San Francisco anesthesiologist and pianist, in September 2010 — 10 days after she’d been diagnosed with breast cancer.

On the witness stand, Findley described himself as “a very detail-oriented person” in reviewing and signing forms required by UC San Francisco’s Center for Reproductive Health before the in vitro fertilization procedure.

A section of the forms, signed by the couple, indicated the five embryos in UCSF’s facility would be thawed and discarded in the event of divorce. Findley said his intent was that any decision to implant the embryos had to be made jointly.

Had Lee asked for the embryos if they divorced, Findley testified he wouldn’t have signed.

“I think I would have asked her first what her intentions were, which was to have children together,” Findley said. “If she said that [keeping the embryos after divorce] was her choice and no alternative, I would have said, ‘I cannot agree to that.’”

But in his opening statement, Maxwell Pritt, Lee’s attorney, said she signed the forms in the midst of a “whirlwind of life-changing moments” including love, battling cancer and dwindling fertility and that ruling in Findley’s favor would be “destructive of Dr. Lee’s procreative rights.”

“Her intent in using her embryos for children far outweighs Mr. Findley’s desire not to have a biological connection to a child,” Pritt said.

At the center of the debate was whether the UCSF consent forms represented a binding agreement between the couple.

Dean Masserman, an attorney representing UCSF, stressed the importance of abiding by the consent forms.

“If these consent forms cannot be relied upon, [UCSF’s] whole process comes to a standstill,” Masserman said. “[Doctors] have to be told what [the donors] want to be done with embryos [having] hundreds of thousands of embryos frozen.”

During opening statements, Findley’s attorney Joseph Crawford raised another twist in the case, saying the divorce was extremely difficult on his client financially and Lee “tried to blackmail him” into giving her property and tried to obtain $1 million to $2 million per embryo.

Lee did not take the witness stand Monday. The bench trial, originally scheduled through Thursday, may take longer, Superior Court Judge Anne-Christine Massullo said.

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