Recently, Arizona has been ground zero for legal disputes on embryo dispositions. Over the past few years, we have been subjected to whiplash by the Arizona courts in the heart-wrenching Torres case, culminating in last week’s decision by the Arizona Supreme Court. I’ll discuss that ruling in a moment. But separately, the state passed an aggressive, and controversial, law ordering judges to ignore the parties’ wishes as to the future of their own genetic material and future offspring.
Where to start? Hold on, let me secure my neck brace.
AZ Supreme Court Reverses Court Of Appeals
To recap, the Torres case facts started with the diagnosis of Ruby Torres with an aggressive form of cancer. Doctors advised her that if she hoped to have biological children in the future, she would need to go through an egg retrieval, and the formation of embryos, prior to starting chemotherapy. One problem, egg freezing alone, at least at that time, did not have the greatest success rate. Hence, Torres was recommended to make embryos — meaning she needed sperm to combine with her eggs before freezing.
Should Have Gone With The Ex-Boyfriend
At the time of her diagnosis, Torres happened to be dating John Joseph Terrell. They must have been somewhat serious at the time, because Torres asked Terrell to donate his sperm to create embryos with Torres’s eggs. He initially said no. However, after she asked an ex-boyfriend — who said yes — Terrell suddenly had a change of heart and agreed to provide his sperm for Torres to form embryos before starting her cancer treatment. The couple later married, but, in 2017, they divorced.
Naturally, as every in vitro fertilization (IVF) patient must do, Torres and Terrell signed routine forms with the fertility clinic. The form they signed became the crux of the case at hand. The forms were not easy to interpret, however. Even the judges sitting on Arizona’s Court of Appeals and Arizona’s Supreme Court — all very smart individuals — could not agree as to what that consent form meant.
One part of the form noted that no party could use the embryos without the consent of the other party. But another part, which the parties initialed, said that “In the event the patient and her spouse are divorced or the patient and her partner dissolve their relationship, we agree that the embryos should be disposed of in the following manner (check one box only).” Torres and Terrell selected, “[1] A court decree and/or settlement agreement will be presented to the Clinic directing use to achieve a pregnancy in one of us or donation to another couple for that purpose.” No, you’re not crazy. Those two provisions are confusing, and could be read to conflict with one another.
The Court of Appeals ruled that the initialed selection meant that the court had discretion to decide who should be able to use the embryos, including a decision that could be against one of the party’s wishes. It took that route, weighed the parties’ interests, and then awarded the embryos to Torres. But the Arizona Supreme Court, on the other hand, reversed, and decided that the initial provision regarding mutual consent must be given more weight. That basically meant that the couples agreed to one of two possible paths: either (1) reach an agreement between themselves as to the disposition of the embryos, or (2) donate the embryos to another couple to achieve a pregnancy. Since (1) didn’t happen, the court ordered that (2) — the donation option — occur.
Well, that’s definitely one reading of the contract. And broadly speaking, it is good that courts pay attention to contracts, since people should have control of their own genetic material. If we agree in writing with others as to the disposition of our genetic material, a court should, indeed, follow that. So the Arizona Supreme Court ruling is a good one. But why doesn’t it feel that way?
Terrell Is Willing To Be A Father, Just Not With His Ex-Wife
I understand the cases, like Rooks, where an ex-spouse does not want to have a child (or another child) out there in the world genetically related to him or her. That’s not unreasonable. But in this case, Terrell was not objecting to having a genetic child; he just didn’t want such a child to be raised by Torres. Despite Torres’s repeat promises that if Terrell allowed her to use the embryos she would not ask him to parent or provide financial support for the child, he will not permit her to use them. So now BOTH Terrell and Torres may have a child — sharing both of their genes — but raised by a third party with no familial connection to either one of them. It’s an unusual result.
It Only Gets Worse
Of course, this case does not even scratch the real issue — the new Arizona Revised Statute 25-318.03. The judges in the Torres case did not consider the new law, given that it passed after the case started (it was, after all, inspired by the case), and was not retroactive. The statute provides that any judge presiding over a divorce case in Arizona where the couple has cryopreserved embryos must award the embryos to the party most likely to “bring them to birth,” regardless of what the couple may have agreed to when going through IVF together. There’s not yet evidence that attorneys throughout the country are advising their divorcing clients who want control of the couple’s embryos to move to Arizona, establish residency, and then file for divorce. But once words gets out, that strategic possibility will make the Grand Canyon State an attractive option for some people. And a disaster for the soon-to-be ex.
I spoke to Arizona-licensed assisted reproductive technology attorney, Christina Miller, on her take on the situation in Arizona. She felt that the Torres case highlights the complexity of parenthood through IVF, and the need for appropriate counseling — especially legal counsel — prior to individuals or couples embarking on fertility treatments. Separately, Miller felt that the Arizona embryo disposition statute was destined to be found unconstitutional, based on the statute overriding fundamental rights to privacy and reproductive freedom.
Until then, the takeaway: always go with your ex-boyfriend’s sperm. Or, maybe better yet, when possible, opt for gamete (egg or sperm) freezing over embryo cryopreservation. The technology is getting better! At the very least, when forming embryos — or dealing with any type of gamete or embryo reproductive treatments, seek legal advice to truly understand the scenarios you may be facing in the future, in order to make the best decision possible at that time.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.