(note: this blog is NOT legal advice)

*update – see blog re: court decision

Here’s a sticky problem: imagine a woman combines her eggs with her husband’s sperm to make embryos, which are now in storage and ready to go. Then they divorce. She is now infertile, so these embryos are her last shot at having a child with her genes. She wants to thaw them out and go for it. He, on the other hand, doesn’t want to procreate with someone with whom he has just gone through a bitter divorce. Even if he tried to stay out of the kid’s life — which he wouldn’t have the heart to do — his offspring would no doubt eventually start sniffing around trying to locate him. This could be awkward, to say the least, and potentially costly in terms of child support.

It seems like an impossible problem, but someone’s going to have to solve it, because it’s a real problem, in a real court case, happening right now in California. According to a report in the Los Angeles Times, would-be mother Mimi Lee, a 46-year-old pianist and anesthesiologist, married wealthy executive Stephen Findley five years ago. Shortly before the wedding, Lee was diagnosed with breast cancer. Doctors feared this might end up making it impossible for her to have children. So the couple went to a fertility clinic straightaway and combined her eggs with his sperm, creating five embryos, now frozen. When the divorce occurred two years ago, he wanted the embryos destroyed. A judge in the San Francisco Superior Court held a trial on the issue, and is now deciding what to do.

In most embryo fights, the person who does not want to procreate wins, according to Professor Judith Daar of Whittier Law School, an expert in the law of assisted reproductive technology who was quoted in the L.A. Times report. However, she added that there have been a couple of recent cases going the other way, awarding the embryos to the woman who wished to use them to have a child — and in both of those cases the woman had also been diagnosed with cancer and was now infertile. The court’s rationale was that if the embryos are a woman’s last shot at having a biological child, this outweighs the man’s desire to avoid procreation. (At least one of those rulings is now under appeal.)

In Lee and Findley’s case, one of the issues to be decided is whether to abide by the consent forms the couple signed when the embryos were created, which stated that the embryos would be destroyed in the event of a divorce. Apart from the usual inquiry into whether both parties read the forms properly, and fully understood them, there is the question of whether the supervening event of her illness, and subsequent infertility, might trump the consent forms.

Lee has offered to waive any future child support from Findley and rear the child alone, but such waivers do not hold water legally. Until the courts or the legislature fully clarify this issue, which perhaps they will do someday if enough cases like this emerge, the general rule is that if you’re a bio parent, even if you never see the kid, you’re still at risk of being on the hook.

Another high-profile embryo fight making its way through the California courts involves Modern Family TV star Sofia Vergara, who created embryos with her fiancée Nick Loeb. After they split and called off the engagement, Loeb brought a lawsuit seeking the right to thaw the embryos and gestate some children. Vergara doesn’t want to, presumably for the same reasons at play in the case discussed above: it’s hard enough to have kids and then split up, but to split up and then have kids — it seems too complicated, to say the least.

There has been no suggestion that these embryos are Loeb’s last chance to have a biological child. Presumably he is free to find another fiancée or wife, or get eggs from a different woman, although he might be hard-pressed to find an egg donor as beautiful and talented as Vergara.

Loeb’s argument is a pro-life one. He apparently sees the embryo’s themselves as being akin to children, and he doesn’t want to see them destroyed. In an Op-Ed piece he wrote for the New York Times, Loeb he said he has “every intention” of finding someone else to reproduce with, “but that doesn’t mean I should let the two lives I have already created be destroyed, or sit in a freezer until the end of time.” He posed the following question: “A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects?”

He went on to say that, unlike the abortion issue, this has “nothing to do with the rights over one’s own body, and everything to do with a parent’s right to protect the life of his or her unborn child.” After all, it’s not as if Vergara would be forced to carry the fetus — a surrogate would be used, which he says was their plan all along. Being a parent was always Loeb’s dream, he adds, noting that ever since the girlfriend he had in his 20s had an abortion, he has “dreamed about a boy at the age he would be now.”

It will be interesting to see whether the court allows him to make actual children out of the embryos, in spite of Vergara’s protestations. If so, Vergara may well discover that once you have a biological child out there, all the useless child-support waivers, all the doomed efforts to keep away from the kid, will only prove one thing: you can run, but you can’t hide.

Bill Rogers is a Toronto-based lawyer, journalist, and family law mediator.