For the first time, a state judge in California addressed a contest over the outcome of frozen embryos after a couple’s divorce by ordering the destruction of five embryos after a man contested his ex-wife’s right to use them post divorce.

This ruling sets a new precedent in the state of California, obligating the court to weigh both the man’s right not to be required to have a child with the woman he is no longer married to and the woman’s right to have a biologically-related child.

The woman is an anesthesiologist who’s name is Mimi Lee and she is a 46-year-old breast cancer survivor who participated in an IVF process after learning she had breast cancer in 2010, resulting in five embryos.

The couple went through a divorce in 2010, and now the woman claims to be unable to have children because she is infertile. The ex-husband, Stephen Findley, told the court that he has no desire to have a child with Dr. Lee for the obvious reason that they are no longer married and also because he fears Dr. Lee might use their child to exploit him financially.

At the same time that the couple had the embryos frozen, they also both signed a consent form that states they both agreed to dispose of the frozen embryos if they were to get a divorce in the future.

One of the major deciding factors that the judge took into account when determining the outcome of this case was that the woman did not take any necessary steps to remain fertile while going through the divorce. The judge also brought up the fact that the consent agreement that both parities signed was a binding contract under state law and therefore could not be rewritten by the court.

Here is the written statement made by the judge:

It is undisputed that Findley was led to believe that Lee only wanted children with him if they were married. She never said otherwise until after they separated. If the Court credits Lee’s testimony that she knew at the time she signed the Consent & Agreement that she could withdraw her consent at any time and yet she failed to tell Findley, it is Lee who should bear the burden of her silence, not Findley. This is particularly true where, as here, she led Findley to believe that any future changes to the agreement would only be jointly made. In addition, Lee did little to further her dream of a having a biologically related child while she was still married to Findley, and failed to take any affirmative action to prevent age-related infertility when her marriage was troubled and after she and Findley separated. Based on all of expert testimony and exhibits admitted into evidence, Lee’s chance of having a child during this time was much greater than it is now.

Before this case, there had been roughly 12 other embryo based disputes around the U.S. Not one of these cases, including this Lee-Findley case, has resulted in an embryo being awarded to someone over the ex-partner’s objection. Binding contracts diminish the need for court verdicts on what most people see as a very private and delicate decision to bring a child into the world.

Since the conclusion of this case, a spokesperson for Lee said she was very disappointed with the outcome and she is currently considering her options going forward. Before the conclusion of the case, she suggested that she would appeal if she lost the case.

If you are considering filing for a divorce or if you have been served with divorce papers in the state of California, contact an experienced and successful Orange County divorce lawyer for legal help.