July 16--REPORTING FROM SAN FRANCISCO -- A woman fighting her ex-husband to be able to use their frozen embryos testified Thursday that she considered a form she signed agreeing to discard them in a divorce a mere directive, not an ironclad contract.
"I want my embryos," Dr. Mimi Lee, an anesthesiologist, said on the witness stand. "I want my baby."
Lee, 46, and Stephen Findley, 45, an executive with an investment firm, were formally divorced in April but remain in court fighting over custody of five frozen embryos they made in 2010 after Lee was diagnosed with breast cancer. The couple separated in 2013.
A medical expert has testified that Lee is now infertile, and the embryos represent her only chance to have biological children.
Lee, testifying before a San Francisco Superior Court family law judge, said she did not carefully read the consent agreement she and Findley signed at a UC San Francisco fertility clinic and viewed the form as akin to an advanced medical directive that could later be changed.
"I often speed read, and I don't read every word, especially in forms like this," Lee said.
She said she did not consider the form binding. "No, absolutely not," she testified. "This is a consent form .... What was on the form could be changed."
San Francisco Superior Court Judge Anne-Christine Massulla, who will decide the dispute, could rule that the agreement the couple signed amounted to a binding contract that must be enforced, or determine the outcome by weighing the interests of both parties.
Lee's lawyers have tried to show that her stake in obtaining the embryos outweighs Findley's interest in having them thawed and discarded because he wants no further involvement with her. He asked for a divorce three years after they married, saying he felt "stepped on and run over."
At 46, Lee says she can no longer conceive a child.
Findley, 45, has testified that he might decide one day to have children with someone else.
Her lawyers have elicited testimony that creating embryos involves a greater sacrifice for women than for men.
Lee spent days injecting herself with hormones and getting blood tests and ultrasound exams. Her eggs were harvested in a surgical procedure. Findley, like other men in such situations, merely had to provide sperm.
But Massulla noted in court earlier this week that men and women are considered "equal partners" under California family law. If a legal test depended on which parent contributed more to the birth of a child, "the woman would always win," the judge said.
The trial started Monday and has been moving at a plodding pace. Testimony is expected to be completed Friday, and closing arguments are scheduled for August.
