Custody battles over frozen embryos just got a lot more interesting

This image was removed due to legal reasons.

Thanks to advances in reproductive technologies, couples having trouble conceiving a child naturally now have a lot of options. But with those choices also come complications.


One of the most interesting questions is: what happens to unused frozen embryos after couples break up?

The issue has bubbled up recently thanks to a high-profile case involving Sofia Vergara and ex-boyfriend Nick Loeb. In April, Loeb sued the Modern Family star to prevent her from destroying the embryos. That case hasn't yet been fully settled, but a recent California ruling further suggests that the law could side with Vergara.


Yesterday, San Francisco Superior Court judge Anne-Christine Massullo ruled in favor of Stephen Findley, who wants to destroy the frozen embryos he made with his now ex-wife, Mimi Lee. Lee is a breast cancer survivor and pled that the five frozen embryos were her last chance to have biological children.

The court didn't agree—it ruled that a contract the couple signed in 2010 with a fertility clinic agreeing to their embryos being discarded in case of a divorce was valid, and trumped Lee's claim to the embryos.

"The court holds that while Lee might have a right to procreate in other circumstances not before the court, she does not have a right to procreate with Findley," the judge wrote. "The role of a court here at the intersection of a constitutional statute and the agreement of two competent adults is clear."

The judge based her decision on precedent set in other states, which also upheld couples' pre-split agreements, according to The Recorder.


"On these facts, enforcing the agreement seems appropriate," Lisa Ikemoto, a UC Davis law professor, told the San Jose Mercury News. "The opinion does a nice job of marshaling the facts that support a conclusion Lee and Findley both understood the document and did intend at that time that the embryos should be destroyed if they divorced."

Most of the time, couples don't sign these types of contracts, which leaves them in potentially prickly situations when they split or change their minds about having a baby together. Pre-embryo agreements, like the one Lee and Findley signed, add a layer of protection for individuals, as Nanette Elster, a reproductive law expert and member of the American Bar Association’s Special Committee on Bioethics and Law, told me earlier this year. "I don’t like to hyperlegalize the family-making process," she said, "but in some cases it’s helpful.”


That's essentially what happened here. This is the first time a California court has ruled regarding the fate of unused frozen embryos, and the ruling could have wider implications for reproductive rights across the country as more of these cases crop up.

In June, the Chicago Tribune reported that an Illinois appellate court had “reaffirmed that a Chicago cancer survivor will get custody of three frozen embryos… despite her ex-boyfriend’s pleas against what he considers forced procreation.”


That battle has been going on since 2012, when a court awarded Karla Dunston custody over her and her ex-boyfriend's embryos. The two cases are similar because Dunston, who's in her forties, is also a cancer survivor and those embryos, the court ruled, were were last option to have biological children of her own.

As Fusion reported in June, there are about 610,000 frozen embryos in the U.S. Most are for the couples that produced them, according to the U.S. Department of Health and Human Services. The rest have been set aside for research, and roughly 60,000 could be used for embryo donation, a process by which a "foster" family gains custody of another couple's unused frozen embryos.


The legal standing of human embryos is still hotly contested. As Fusion reported this summer, the "legal status of embryos varies by state. Some state courts deem embryos property; some as non-living persons,and still others as somewhere between person and property, since they have the potential for human life."

The San Francisco judge who decided yesterday's case also grapped with the question of whether frozen embryos are people or pieces of property, with respect to the law. "It is a disturbing consequence of modern biological technology that the fate of the nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles," Massullo wrote.


Lee has the right to appeal the judge's decision within 15 days. But no matter what this case's ultimate outcome is, one thing is already clear: in frozen embryo cases, the law hasn't yet caught up with the science.

Daniela Hernandez is a senior writer at Fusion. She likes science, robots, pugs, and coffee.

Share This Story

Get our newsletter