Woman says she thought agreement to destroy embryos not binding

Stephen Findley arrives at San Francisco Superior Court on McAllister Street for the third day of testimony in a trial against his ex-wife Mimi Lee involving custody of their frozen embryos in San Francisco, Calif. on Wednesday, July 15, 2015. less Stephen Findley arrives at San Francisco Superior Court on McAllister Street for the third day of testimony in a trial against his ex-wife Mimi Lee involving custody of their frozen embryos in San Francisco, ... more Photo: Paul Chinn, The Chronicle Buy photo Photo: Paul Chinn, The Chronicle Image 1 of / 12 Caption Close Woman says she thought agreement to destroy embryos not binding 1 / 12 Back to Gallery

A woman fighting her ex-husband for control of their frozen embryos testified Thursday that she never believed she was bound by an agreement at the heart of the dispute: a statement in 2010, shortly after their wedding and her diagnosis with breast cancer, saying the embryos were to be destroyed if they divorced.

When she and Stephen Findley signed the agreement with the reproductive health center at UCSF, Mimi Lee said, she intended to adhere to its terms and comply with the university’s conditions for storage and future use, or destruction, of the embryos. But Lee, testifying in San Francisco Superior Court, said she believed at the time, and still believes, that “there were conditions under which we ... I could change my mind.”

One reason for her belief, Lee said, was her experience as a physician and anesthesiologist. She said patients who sign advance directives saying they should not be revived if their heart fails or they stop breathing are often revived anyway, at the direction of family members or their doctors.

“We had a great sense of urgency regarding fertility, given the cancer,” said Lee, 46, who was rendered infertile by a drug she took in her successful cancer treatment. She said she endorsed the agreement with UCSF believing it was the couple’s best chance to have children together and she hurriedly signed the medical forms “so that we could get on with what we needed to do, which was to treat my cancer.”

The trial is a test of the binding nature of such agreements after marriages break up. Findley, an investment analyst who filed for divorce in August 2013, says he wants the five frozen embryos destroyed, as the contract provides, and does not want a parental relationship or financial obligations for children he will have no part in raising. Lee has said she’s not seeking any paternal or financial support.

She contends the agreement was not a binding contract between her and Findley but merely spelled out UCSF’s obligations to each spouse. She also says destruction of the embryos would violate her right of procreation, part of the personal “liberty” protected by the Constitution under U.S. Supreme Court rulings.

“I want my embryos. I want my babies,” she told the university’s lawyer, Dean Masserman.

Lee denied signing an agreement that she had never intended to keep. But Masserman quoted a previous sworn deposition in which Lee said that, because of her familiarity with medical consent forms, “I knew that none of them are ever really binding.”

And while she testified that before their separation, she and Findley had never discussed or argued about possible destruction of the frozen embryos, Findley’s attorney quoted a deposition in which Lee acknowledged that Findley had told her, a year and a half before the breakup, that he wanted the embryos destroyed if they divorced.

Lee tearfully confirmed Findley’s accounts of two angry conversations she had with him after their breakup. In one, she asked Findley whether he would pay her millions for the emvbryos. The other took place after he told her he might have to sell the San Francisco condominium where they lived. Lee told him that if they ever had children from the frozen embryos, “you should be worried about what I’ll say to them if you’re not generous to me.”

But Lee said Thursday that she had just been trying to get Findley to take her concerns seriously about the embryos, a subject he wouldn’t discuss. They are “my last chance to have my own babies, and they’re priceless to me,” she said, adding that she would never have accepted any amount of money for them.

She also denied trying to blackmail him into giving her the condo.

During those arguments, Lee said, Findley told her, “I’m dying to have a family. I’m dying to have my kids. I just don’t want to have them with you.” Nevertheless, she testified, if her ex-husband told her today that he would be willing to put their disagreements aside and let her give birth to their child, while staying involved in the child’s life, she would agree.

Testimony in the nonjury trial before Superior Court Judge Anne-Christine Massullo is scheduled to conclude Friday. Closing arguments are scheduled for Aug. 4.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko