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I Lost Custody of My Embryos: What I Should’ve Known

lost embryos

Even when everything is normal, getting pregnant can be an emotional ride. Add in infertility, a cancer diagnosis, a fractured marriage, and a custody battle over embryos, and it becomes life-altering. What happens to preserved embryos when a couple splits? Dr. Mimi Lee discovered the answer the hard way.

Almost seven years ago, Lee was a newlywed suddenly diagnosed with estrogen-positive breast cancer. She needed to begin a five-year-long course of treatment involving tamoxifen. At the time, the doctors advised her not to get pregnant. Tamoxifen suppresses estrogen and reduces ovary function. With no plans to divorce, Lee and her husband immediately met with a fertility specialist to pursue in vitro fertilization (IVF).

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Most people who face infertility find new hope by exploring IVF. During IVF, the eggs are extracted from a woman. These eggs are then combined with sperm to create embryos that can remain frozen until a couple decides to start a family. While most couples are asked to consider what would happen if one of them dies or they get divorced, many don’t think about what it would be like to live in that future.

Lee and her husband completed numerous forms. Some of them were about giving the fertility clinic permission to perform the necessary procedures. Another was about the future of their frozen embryos in case Lee or her husband died, or the couple divorced.

The couple agreed to destroy the embryos and didn’t think twice about their decision. To their joy, Lee’s first round of IVF produced five healthy embryos that were placed in liquid nitrogen and frozen for future use.

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“It seemed ridiculous,” Lee says. “We were just married, I had cancer, and we were trying to create our future babies.”

Lee then turned her attention to fighting cancer, and even on her darkest days, the embryos offered hope.

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Three years later, Lee had beat cancer, but the victory was bittersweet. Her husband had filed for divorce, leaving Lee face-to-face with an even bigger battle: fighting for custody of the embryos. Her legal court case dragged out for years. In the end, Superior Court Judge Anne-Christine Massullo ruled that the contract Lee and her husband signed was valid. Lee lost the embryos.

“My cancer and subsequent therapy made me feel confused, depressed, and betrayed by my body. But I felt reassured that I had preserved my ability to become a biological mother,” she says. “I never thought that I would have to fight for my babies before they were even born.”

Her story is not unique. Actress Sofia Vergara made headlines with a similar custody battle over two frozen female embryos. Like Lee, Vergara signed an agreement with her former fiancé for their embryos to be destroyed if either of them died. But the couple has been unable to come to a clear agreement about what should happen now that they have split.

After her own tumultuous journey, Lee recognized that what women really need to know extends far beyond a fertility doctor’s job description. She’s now made it her mission to educate other women who are considering freezing their embryos. By candidly talking about her experience, Lee hopes she can help prevent another woman from losing a future she dreamed of.

Here’s what you may not — but really should — consider before starting IVF:

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1. Map out the outcomes

While it might be an uneasy topic, Lee recommends candidly talking to your partner about what you will do with any frozen embryos if you divorce, or if one of you passes away. Couples pursuing IVF are often on the same page about starting a family together. But when it comes to the possibility of starting a family without both parents, things can become drastically different.

For example, a woman may feel OK about giving the embryos to another infertile couple, but her partner may disagree. Religious and spiritual beliefs may also play a role when it comes to deciding whether to donate the embryos to science.

This is why most fertility clinics require couples to agree on what to do with the embryos in case one person dies, the couple separates, or there are excess embryos available.

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“Before beginning an IVF cycle, all of my patients sign a consent form that informs them of their options should they divorce,” says Dr. Aimee Eyvazzadeh, a reproductive endocrinologist in the San Francisco Bay Area.

Dr. Eyvazzadeh tells people that they can donate excess embryos to research, give them to another infertile couple, pay to keep them frozen, or destroy them.

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Lee recommends that all women find a doctor who cares about their individual fertility journey. “A good physician will take the time to educate you and your partner about the IVF process by talking to you about the decisions that you’ll make along the way,” she says.

Many fertility clinics have psychotherapists on staff. These therapists can help couples sort through this decision-making process, as well as the feelings of discomfort and sadness that might arise as you talk about your options.

2. Consult with a lawyer and educate yourself about the law

It’s vital to understand the effects of your decisions. “If you’re creating embryos with a spouse, partner, or friend, you each need a lawyer to create a contract before the process begins,” says Lee.

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A good lawyer will come up with possible scenarios that you may not have considered. For example, they’ll walk you through hypothetical situations and document your wishes for each of them. Lee recommends familiarizing yourself with the laws in your state so that your lawyer can help you with these specific questions. They’ll also help create a legal agreement that you and your partner, egg or sperm donor, or friend will sign.

Fertility doctors are in the business of helping women and couples to create babies. They’re not lawyers or a source for emotional support. Because of this, you should also carefully read and understand all of the forms that fertility clinics require you to sign before starting any treatment. You can also have your lawyer look over these documents before you sign them.

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“It's better to wait and have your questions answered even if that means that you have to postpone your fertility treatments,” Lee suggests. “It can save a lot of confusion and heartache in the long run.”

3. Share your story and seek advice

Finding emotional support can help you feel less alone in the process.

Fertility treatment is often a private matter. Because of this, many women and couples feel vulnerable discussing their experiences with others. Whether you’re having IVF to preserve your fertility due to illness, seeking an egg or sperm donor, or pursuing single parenthood, Lee suggests that you find others who will listen to your experience and offer you advice.

“When we feel supported by a close circle of family and friends, we’re able to make better decisions, as opposed to fear-based or overly emotional ones,” Lee says.

Some fertility clinics offer support groups for people undergoing IVF. Resolve, a nonprofit organization, provides a list of infertility resources. Other families also find online support through private Facebook pages or on Reddit.

While many women and couples view the IVF process as the only part of their fertility journey, Lee encourages finding support after the baby is born as well. “Women gain a lot of support by hearing about other people’s successes and their failures, too. We feel empowered by learning about other people’s journeys,” she says.

Keep reading: Finding support for infertility »

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