AlexRaths/iStock/ThinkStock(SAN FRANCISCO) — The woman at the center of a legal battle with her former husband in California over their frozen embryos spoke exclusively with ABC News as a judge prepares to issue a verdict in the case.
Mimi Lee met ex-husband Stephen Findley while they were students at Harvard, she said. They decided to freeze her embryos after she was diagnosed with breast cancer days before their wedding.
“We realized the risks,” she said. “I would be injecting myself with the very hormone that my tumor feeds on. And even with all of those risks, we knew that this was — since it was our last, best chance, we would go ahead and do that.”
The couple, who married in 2010, signed a consent form with the fertility clinic that says the five frozen embryos would be destroyed if they were to divorce.
According to the “Declaration of Mimi Lee” included in the court documents, they “checked off boxes indicating that the UCSF [University of California, San Francisco] was to ‘thaw and discard’ any viable embryos for almost all of the scenarios presented, with the exception of Steve’s death, in which case the embryos would be transferred to me. I did not believe that either Steve or I were bound to the indications made on the Consent Form.”
Findley filed for divorce in 2013 and wants the court in San Francisco, where closing arguments ended Tuesday, to enforce the consent form and order the embryos destroyed. The couple’s divorce was finalized in April of this year.
“It’s still an agreement,” Findley’s attorney, Thomas Kenney, said in closing arguments, speaking of the consent form. “The word ‘agreement’ appears in the document 27 times.”
Findley, a financial analyst, also testified his concern that Lee would “manipulate the situation” to extract money for other purposes.
Lee, 46, has denied that claim, saying she made it clear to Findley that she doesn’t expect him to be part of her children’s lives, financially or otherwise.
In the opening statements, Stephen Findley’s attorney, Joseph Crawford, said, “If a child is genetically his, he will participate in the child’s life…But he fears 18 years of interaction with Dr. Lee.”
According to Crawford, “The two had an “extremely difficult divorce” marked by conflict over financial issues.”
Lee, a doctor and Julliard-trained pianist, argued that signing the consent form does not prevent her from changing her mind.
“I have biological children ready to come to life,” she said, adding that her age and medication she takes to treat her breast cancer make it medically impossible for her to have children.
Lee told “GMA” that being in the courtroom with her former husband was the “hardest thing I’ve ever done.”
“I stayed focused on my babies,” she said through tears. “Knowing that I’m their mom and I would do anything for them … that really got me through.”
Lee’s attorney, Peter Skinner, argued state law allows patients to change their minds because the consent form isn’t a legally binding contract.
“At its core, it’s not a contract,” said Skinner, of the firm Boies, Schiller & Flexner LLP. “Nowhere in there does it say, ‘This is irrevocable.'”
Attorneys for Findley declined to comment to ABC News.
The California case, which could set a new legal precedent in the state, draws comparisons to actress Sofia Vergara’s legal battle with ex-fiance Nick Loeb, who wants to use their frozen embryos despite her reservations. Loeb has filed a second lawsuit seeking custody of the frozen embryos.
In Lee’s case, her moral argument is an intriguing one, but it’s a tough argument to win, ABC News legal analyst Dan Abrams said.
“Because she signed that document, she’s in a tough spot legally,” he said.
California Superior Court Judge Anne-Christine Massullo is expected to issue her ruling in the next 120 days.
“I’m still very, very devoted and dedicated to seeing these embryos to life, so I will continue to fight for custody of them,” Lee said. “The thought that the children that we created will never see light is something I haven’t really wrapped my head around. It seems unfathomable to me.”
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