An accomplished doctor and breast cancer survivor in her mid-40s, anxious about her receding prospects for motherhood, begs a judge to let her start a family using embryos she froze with her ex-husband before they split up. Her ex objects, and to convince the court he’s right, hands the judge two fertility treatment documents the couple not only signed but initialed 15 times, referring to themselves as “the Female Patient” and “the Partner,” and instructing that their embryos be “thaw[ed] and discard[ed]” if they divorced.
How should the judge decide? Should a dispute this emotionally fraught be resolved by relying on cold paperwork? And could this case help resolve the unending frozen embryo fight between “Modern Family” star Sofia Vergara and her ex-boyfriend Nick Loeb?
In the case of Mimi Lee, the doctor and cancer patient, a judge followed the letter of the law and denied Lee’s demand to use the embryos. And leading assisted reproductive technology lawyers are applauding.
“It was the right decision, and for all the right reasons,” says Susan Crockin, an expert in reproductive technology law at Georgetown Law Center’s O’Neill Institute for National and International Health Law. “The court was not swayed by attempts to inject emotion. Instead it reviewed the evidence, including the forms— which were thorough, clear, and consistent with California legal requirements — state law and legislative history, and the parties’ oral testimony.”
In her ruling, Superior Court Judge Anne-Christine Massullo acknowledged the wrenching nature of the dispute between Lee and her ex, Stephen Findley. “It is a disturbing consequence of modern biological technology that the fate of the nascent human life … must be determined in court by reference to cold legal principles,” she wrote. She acknowledged that hers was the first California court case settling a dispute over frozen embryos. And she relied on the clear choices Lee and Findley made, in writing, about their reproductive future, choices that the judge said allowed her to resolve the case “in a clear-eyed manner” by enforcing the mutual agreement the couple reached at the time they signed to discard the embryos if they divorced.
“The best evidence of intent is a direct agreement between the parties,” says Diane Hinson, an assisted reproduction attorney who owns Creative Family Connections, a surrogacy agency in Maryland. Hinson says some standard IVF forms can seem like “big, long boilerplate” that couples may sign without giving meaningful consent. The California form Lee and Findley signed, however, demanded that they pay close attention to mutual agreement. In a nice bit of textual analysis, the judge noted the forms featured 27 uses of variations of the word “agreement” and mentioned shared pronouns like “we,” “us,” and “our” at least 160 times. The paperwork was designed to ensure that a couple “make actual choices and actual decisions,” allowing a court “to apply the contract approach and not have to make subjective balancing decisions,” Hinson says.
The Lee decision also aligns with rulings in other states. In general, courts won’t allow the use of a frozen embryo if one party objects — though lawyers are quick to add that all cases are fact-specific. So this spring, in another closely-watched embryo battle, an Illinois appeals court gave a nurse diagnosed with non-Hodgkin’s lymphoma permission to get pregnant using frozen embryos she and her ex-boyfriend created after he objected. There, the court decided that the couple’s earlier conversations about the plan — allowing the nurse to use the embryos — were enforceable.
As for Nick Loeb, who is famously campaigning for the right to use the embryos he froze with Vergara, the Lee decision “certainly doesn’t help, because it lays out a very reasoned analysis of why a jointly reached decision, whether in a form or based on other evidence, should be followed,” says Crockin. The decision, therefore, may rest in the details.
So what does Loeb’s agreement say? He told The New York Times that he and Vergara signed a form that required both of them to consent to use of the embryos — but didn’t specify what to do if they separated. Loeb is asking a court to void the agreement.
What should couples contemplating fertility treatment make of this latest ruling? Hinson says: Put your thoughts in writing, and consider additional paperwork if your state doesn’t require as much detail in its agreements as California does. While those documents may disappoint the person who wants to build a family, it will provide the foundation to resolve one of modern life’s thorniest disputes. “Objective rulings make sense to me,” she says.
Lisa Green is an MSNBC legal analyst and author of “On Your Case: A Comprehensive, Compassionate (and Only Slightly Bossy) Legal Guide for Every Stage of a Woman’s Life.”