Rich Vaughn Blog: Frozen Embryos Discarded Following Divorce

Agreements on Disposition of Frozen Embryos Protect Future Peace of Mind

A San Francisco court upheld earlier this week an agreement that frozen embryos created via in vitro fertilization during a couple’s marriage would be discarded in the event of their divorce.

Before undergoing fertility treatments at University of California, San Francisco, the couple, Mimi Lee and Stephen Findley, executed a form agreement indicating their wishes to have the embryos thawed and discarded if they were to later divorce. Following their divorce, however, Lee contested the agreement and asked that the embryos be preserved for her use. Her attorney told CBS San Francisco in July that cancer treatment had made Lee infertile. Lee, who is in her mid-40s, told the court she felt the embryos were her last chance to have biologically related children. But ex-husband Findley objected to Lee’s use of the embryos to procreate, and San Francisco Judge Anne-Christine Massullo found that under California law the agreement indicating the couple’s wishes at the time of the fertility treatments must be upheld. Citing Massullo’s decision, The Recorder reported, “Lee may have a right to procreate in other circumstances not before the court, but she does not have a right to do so with her ex-husband, who opposes the embryos’ use.”

The ruling is the first of its kind in a California court and is expected to have “major implications” for the IVF industry, The Recorder reports. Courts in other states also have upheld agreements regarding the future disposition of embryos. Lee argued that the agreement was an advance medical directive and was thus non-binding and also that she did not give informed consent. But Massullo noted that Lee had initialed the agreement multiple times and signed it, with no evidence that she did not understand what she was signing. Massullo also pointed out that Lee, a physician who worked in fertility clinics, was knowledgeable about the IVF process, yet failed to attempt to harvest additional eggs as her marriage was ending, even though she had discussed with UCSF the possibility of harvesting eggs while she was undergoing cancer treatment.

As assisted reproductive technology becomes more successful and more widely used and accepted, we can expect to see lots more similar cases emerge. Perhaps the only situations more emotionally charged than ending romantic or marital relationships are situations involving procreation and reproductive rights. As we wrote earlier this year in regard to another headline-making case, the best way to ensure that the rights of all parties are protected is to execute a legal agreement between the parties, thoroughly outlining as many eventualities as possible and clearly stating the wishes of the parties. In a way it’s akin to a prenuptial agreement—in the heartfelt throes of love, setting conditions for what will happen in the worst-case scenario may feel cold-hearted or even cruel. But when and if the worst does happen, there is a clear, legally binding blueprint setting out how assets will be distributed and the rights and obligations of each party—certainly preferable to a lengthy and bitter court battle. The same is true of surrogacy, egg donor and sperm donor agreements—taking the time and effort to clearly state the rights and obligations of all parties before a child and all the emotions surrounding pregnancy and parenthood are involved pays off big in future safety, security and peace of mind.

 

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.