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Frozen Embryos and Divorce: When Potential Parents Disagree
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Frozen Embryos and Divorce: When Potential Parents Disagree

On Behalf of | Dec 15, 2019 | Divorce

Modern technology has opened up new opportunities for those seeking to have children in an unconventional manner. Today a couple can conceive a child not to be born into the world until several years later. Frozen embryo technology has advanced significantly in recent years. However, along with the advances in reproductive science have come an increase in legal disputes related to parental rights.

This issue has gained widespread popularity recently with the dispute between Sofia Vergara and her ex-fiance, Nick Loeb. Although the couple is no longer together, Nick wants to use the couple’s embryos while Sofia, having moved on from the relationship, does not agree. The result of their case will shed some insight as to how court’s decide to treat contractual agreements between partners choosing at one time to freeze their embryos and then later disagreeing as to whether those embryos should be allowed to survive. The more complex legal issues come into play when those partners were married at the time the embryos were frozen.

This week a trial is being held in San Francisco wherein a family court judge is being asked to decide whether or not embryos frozen during marriage should be destroyed or preserved for the mother to potentially use in the future. In the case of Stephen Findley and Mimi Lee, Stephen has requested to have the embryos destroyed while Mimi, unable to have children due to complications related to cancer requests that the embryos be preserved.

The Findley v. Lee case deals with parental rights related to survival of embryos. What isn’t being discussed is the potential impact of the ruling in this case as it relates to legal issues surrounding parental relationships and parental responsibility once those embryos are realized as born into this world children.

If Mimi Lee wins this case and she is able to use one or more of those embryos will Stephen Findley have parental rights? Will he have the obligation to financially support those children even though he never wanted them to be born in the first place? The answers to these questions will no doubt be the subject of extensive litigation and should be the subject of discussion regarding potential new legislation.

Under California statute regarding paternity as it stands today; if Mimi Lee wins the case and bears one or more of these children, Stephen Findley will be the presumed father of that child because he is the biological father of the child. The current statute related to conception through assisted reproduction (California Family Code Section 7613) only shields from parental relationship a “non-spouse donor” or a spouse not giving consent to conception using the sperm of a non-spouse donor.

If Findley is found to be the legal father of a child born from one of these embryos, then under current law he will be financially responsible for the child and will be obligated to pay child support. Findley is an executive at a Bay Area global wealth management firm, worth millions. If Lee is able to have a child fathered by Findley, the child support order will be substantial. If Lee wins, Findley will no doubt appeal. This case is one of many to come unless and until legislation is passed to deal with the increasingly complicated area of parental rights related in artificial insemination.