Who has custody over frozen embryos?

The roughly one million frozen embryos idly sitting in storage in fertility clinics across the United States has long been a point of controversy. People often dispute whether these frozen embryos ought to be destroyed, kept or used for stem cell research. However, this past summer highlighted yet another point of contention regarding frozen embryos: the conflict of custody after a couple’s divorce. Since the beginning of this summer, the media has been waiting for the court’s decision on Dr. Mimi Lee and Stephen Findley’s embryo custody case. The couple divorced in 2013, and if Lee—who suffers from breast cancer—gains custody over her embryos, she would use them to procreate. However, Findley wishes to have them thawed and discarded. Because Dr. Lee has more to lose in this case than her ex-husband does, she should be able to use her right to procreate with these embryos, and they should not be destroyed.

In 2010, Dr. Mimi Lee and Stephen Findley decided to freeze five embryos after Lee was diagnosed with breast cancer. Lee underwent numerous hormone injections, blood tests and ultrasounds in preparation for retrieving her eggs for in vitro fertilization. A fertility consent form was signed for this process, which stated that the embryos would be discarded at the event of a divorce; Lee and Findley divorced three years later. Lee, now 46 and infertile, is fighting for the right to use them to have children that are genetically related to her, while her ex-husband is aiming for them be thawed and destroyed because he does not wish to have children with her.

Dr. Lee has earned the right to keep the embryos due to the fact that she has had to endanger her health in order to extract her eggs, while Findley easily provided the sperm. The eggs had to be extracted before she underwent cancer treatments since the cancer drugs would have endangered the fetus. Lee’s cancer made extracting her eggs more hazardous than other cancer-free women; she injected herself with the very hormone her tumor feeds on, putting herself in greater danger to the cancer. Because California family law considers men and women to be equal partners, it is not so much a case of who contributed more to the creation of an embryo in this situation, but rather the fact that Lee endangered her own life and put hormones into her body that accelerated the growth of her tumors for the sake of creating these embryos. If the embryos were to be discarded, the risks that she took to the endangerment of her life would be made futile.

Health was not the only thing at stake in obtaining the eggs; Lee’s infertility and cancer medication has rendered her only chance at ever having biologically related children to her to these five embryos. Lee considers the embryos as her “biological children ready to come to life.” While having genetically related children is by no means the only or “correct” way to have children, it is the method that Dr. Lee has chosen to have children and the reason why she had the embryos created and frozen in the first place. Therefore, her desire to have genetically related children must be considered when determining the custody of the embryos.

Even if Lee’s health issues and desire to have genetic ties to her children were to be ignored, from a legal standpoint, she should be able to change her mind with regards to whether or not the embryos should be discarded. Lee and Findley had checked off boxes indicating that the University of California, San Francisco, was to thaw and discard any viable embryos in the event of divorce, but the consent form that Lee and Findley signed is not legally binding. The lack of laws concerning reproductive technology gives the court the power to choose whether or not the agreement should be enforced. The consent form did not indicate that the parties involved could not revoke their decision at any given time after it had been signed. Lee’s health and last chance at having biological ties with her children could be additional reasons to not enforce the agreement.

Many may fear that allowing Lee custody over the embryos will force Findley into becoming a parent against his will. In general, most courts treat embryos as property rather than potential children and, consequently, favor an individual’s desire to not become a parent over one who wishes to become one. This general rule could give Findley a good chance at winning the case.

However, forced procreation is not at issue in Lee and Stanley’s case. Lee has no expectations for Findley to be a part of the children’s lives financially and personally, but Findley’s attorney, Joseph Crawford, asserted that “if a child is genetically his, [Findley] will participate in the child’s life...[what] he fears [is] 18 years of interaction with Dr. Lee”. In other words, his protests are not in becoming a parent but rather in the possibility of having to interact with Lee when the children are born. These concerns do not justify the destruction of the embryos since he is willing to be present in the children’s lives and has not expressed concern over their potential existence. The case could then be treated as if it were a child custody case between a divorced couple, and minimal interaction between Lee and Findley could be arranged with the children’s well being in mind.

Findley will always have the option to have biological children, and this is a choice that Lee does not have. The consent form may be the biggest challenge that Lee will have to face when fighting for custody in court. However, the lack of laws regulating reproductive technology can be used in her favor to help her gain custody over the embryos. Given the scale and media attention this particular case has garnered, the court decision may well establish the legal precedent for future similar cases.