Shortly before Dr. Mimi Lee, a pianist and part-time anesthesiologist, married executive Stephen Findley, she learned that she had breast cancer. Lee battled the cancer and won, but the treatments left her infertile.

Before the cancer could affect her reproductive abilities, however, Lee and Findley had five embryos created and frozen so that they could conceive a child in the future.

Unfortunately, the marriage didn’t work out, and they divorced two years ago. Findley then said that he wants the embryos, which used his sperm with Lee’s eggs, destroyed.

Lee, on the other hand, doesn’t want to destroy the embryos and says that they’re her only chance at ever having children with her DNA. Now the San Francisco divorcees are battling in California courts over the fate of the embryos.

The couple’s divorce attorneys argue that each former spouse has the right to decide what to do with the embryos. Findley and his lawyer say that the couple signed an agreement to destroy the embryos if they split; Lee’s lawyer has argued that Lee has a fundamental right to procreate using the embryos.

Findley’s attorney also alleges that Lee used the embryos to blackmail Findley during the divorce, saying that she tried to get between $1 million to $2 million per embryo from him.

Custody cases aren’t uncommon in the United States, and most times they rule in favor of the mother. Children of divorce have a 25% likelihood of moving away from their fathers and with their custodial mothers as they grow up, but there aren’t very many precedents set concerning children who aren’t even in the womb yet.

However, two other recent cases ruled in favor of the wife under similar circumstances. In both incidences, the wife had received a cancer diagnosis and was left infertile.

Another high profile case, involving actress Sofia Vergara and husband Nick Loeb, centers around two embryos the couple created, of which Loeb wants custody.

Unfortunately for Lee, the courts may see this more as a contract issue rather than a bioethical one. Lee has said she would waive the right to child support if she wins the embryos from Findley.

The judge has 90 days to hear the case, which is being made in court without a jury. No matter what the decision, both sides have a high probability of an appeal.