Custody of Unborn Children? How Fertilization Technology is Creating New Areas in California Family Law

In his July 12, 2015, article entitled, Destroy or not? Frozen embryos at center of California Divorce War, Howard Minz describes a current divorce proceeding in the San Francisco Superior Court wherein the only unresolved issue between the parties is whether or not to destroy frozen embryos when a married couple with such embryos decides to divorce. At the time of the writing of the article, trial was set for mid-July, and to date, no decision has been reached.

Specifically at issue are the parties, Stephen Findley and Mimi Lee, who were married in September 2010. Just prior to marriage, Mimi was diagnosed with cancer, which, coupled with the treatment, may have affected her ability to have children. As s result, just prior to starting her cancer treatment, the couple went to University of California at San Francisco’s fertility center and had five of Lee’s eggs, which were fertilized by Mr. Findley, cryogenically frozen to preserve the couple’s ability to have children in the future. However, now that the couple is divorcing, the court will have to decide what to do with the embryos.

Although this is the first such case in California, other states have had to grapple with this issue, and no doubt, as fertilization technology continues to improve, this will certainly not be the last such case.

Here, Ms. Lee is taking the position that these embryos represent the only possibility for her to have children in the future, and therefore they should not be destroyed. On the other hand, Mr. Findley, is claiming that he would be psychologically disturbed if the embryos were used to produce children, and also worried about his financial and parenting obligations should such children be born.

A significant factor in this case is that the parties signed documents with the fertility center that expressly states that the embryos are to be destroyed if the parties were to divorce. According to Mr. Minz, it appears that the fertility center is taking the position that the written agreement should be “valid and enforceable,” and therefore, the embryos should be destroyed. The article goes on to describe legal scholars commenting on what the potential outcome should be and why.

Obviously this case is significantly different than most cases involving children, or in this case, unborn children. Normally in California, when courts are tasked with determining child custody and visitation orders, the court must look at what is in the child’s best interests. This is set forth in California Family Code section 3020 et.seq.

However, in this case, it appears that both parties’ positions focus on what their interests are, and not the interests of the embryo (i.e., Ms. Lee is solely focused on her inability to have children as a reason to preserve the embryos, and Mr. Findley seems solely concerned about his financial and parental obligations if the embryos are preserved and children eventually produced).

This case raises many interesting questions. First, as raised by Mr. Findley, what, if any, responsibility would he have to financially support and /or care for any such child produced by the embryos? Currently in California, a parent (which he would be), has the obligation to support their children, and the legislature has even developed formulas and child support calculators to determine this. Could this obligation be terminated if the embryos are preserved and a child is born?

Other questions abound, such as: What if Ms. Lee could not support the child for whatever reason, would the taxpayers have to support the child by way of public benefits, even if the father (Mr. Lee), is available to financially support him or her (in this case, he is a multi-millionaire and she is a Harvard trained doctor in neuroscience, so this scenario is unlikely). Additionally, the cost involved in fertilizing an embryo and cryogenically freezing it suggests that this will only affect couples with means). Or, what if Ms. Lee were to die, would Mr. Findley have some obligation to care for this child? Or conversely, when Mr. Findley dies, is this child able to inherit under California law?

Finally, another broad but heavily debated question is what, if any, rights or voice do the embryos or unborn children have, which is a question that has been raised over the decades in the ongoing abortion cases. In the present case, the embryos are more or less being treated as property. However, as it appears that the embryos are fertilized, one can already envision that advocates of unborn children may seek to have such embryos treated as human beings, thereby changing this debate entirely.

Although it may be many years before this case and others like it enter into the mainstream, if at all, it certainly shows how technology and law are interrelated, and how advances in medicine and science ultimately affect the current state of the law, and the various issues that the Family Code must address in the future.