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Trial opening in SF divorcees’ frozen embryos dispute

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San Francisco anesthesiologist Mimi Lee was at the end of several years of aggressive, successful treatments for breast cancer when her husband Stephen Findley filed for divorce.

Even more devastating than the December 2013 filing was Findley, 45, a financial analyst she had known for more than 20 years since they were classmates at Harvard University, wouldn’t consent to Lee using five frozen embryos the couple had cryopreserved when they had plans to have children.

Those embryos, which are being kept by UC San Francisco, present possibly the last chance for Lee, who was diagnosed 10 days before her wedding and is now 46, to have biological children.

The trial to determine the resolution of the case begins Monday in San Francisco Superior Court and will be presided by Judge Anne-Christine Massullo.

The court’s decision could be a landmark California ruling defining whether such medical agreements are binding or nonbinding, and if they are the latter, figuring out who gets the embryos.

“I want to have a baby that’s mine. I very much want to start a family,” Lee said in an email Sunday. “Going into the trial, I feel anxious and hopeful that after all I have been through, my dream to have a child of my own will finally become a reality.”

The fate of the embryos lies in how the court rules on consent forms Lee and Findley signed in September 2010 with UCSF. Such forms are routine for partners who use in vitro fertilization to extract eggs, fertilize them and freeze the embryos.

Lee’s attorney Peter Skinner said the couple — preoccupied with the medical procedures Lee was about to undergo to save her life from breast cancer — in about 10 minutes checked off a number of boxes. That included a box stating the embryos would be given to Lee if Findley died, but in other cases, such as both of their deaths or divorce, the embryos would destroyed.

UCSF, brought into the lawsuit because they are the facility storing the embryos, said in a brief they wanted their medical directive from the agreement to be enforced, meaning that the embryos be discarded.

But Skinner said California law clearly indicates the UCSF agreement was not a binding contract and that the stipulations could be modified and disputed with changes in circumstances like his client’s.

Furthermore, Skinner said he is not aware of any court in the country ordering the destruction of embryos when the party seeking to sue them had no other avenue to having biological children.

“We think you end up in a situation where the court is required to balance the interest of the parties with each other and given the fact that our client has no other option for biological children, that the balance will have to tip in her favor,” Skinner said.

Findley’s attorneys Thomas Kenney and Joseph Crawford could not be reached for comment. In a brief, his attorneys referred to a state penal code section stating it is a felony to implant embryos without the written consent of a provider — in this case, Findley.

Lee said in an email she hopes her case will give women in her situation a mechanism to resolve disputes with their partners over the dissolution of embryos.

“I also hope it will encourage women and men alike to talk through the issues concerning the cryopreservation of embryos together before they go forward with the procedure and to reach informed and binding agreements that reflect their wishes,” she said, “Not simply the options contained in pre-printed consent forms that are provided by the facility storing the embryos.”

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