Arizona Law Determines Fate of Frozen Embryos in Divorce Cases

• Author: Mark F. Walsh
• Pages: 11-11

PHOTOS BY CAROLYN VAN HOUTEN/THE WASHINGTON POST VIA GETTY IMAGES; REMI BENALI/GAMMA-RAPHO VIA GETTY IMAGES; COURTESY OF UCI LAW

Opening Statements

DECEMBER 2018 ABA JOURNAL || 11

Arizona Law

Determines Fate

of Frozen Embryos

in Divorce Cases

FOR MORE THAN TWO DECADES,

state court s have wrestled with

how to settle disputes over fr ozen

embryos when couples divorce or

otherwise split. I n such cases, one

spouse typica lly wants to keep the

embryos to eventually c onceive chil-

dren, while the other doesn’t.

Courts have tended to side w ith

the party who doesn’t wi sh to be-

come a parent on the grounds that

no one can be forced to procreate .

But at times, rulings have gone the

other way—especially in in stances

where the frozen embryos represent

a person’s only chance of having bio-

logical children—leav-

ing a split in the courts

and uncertaint y for

litigants.

But a fi rst-of-its-

kind law would end

that uncertai nty in

Arizona. T he state’s

Parental Right to

Embryo law, which took

e ect in July, requires c ourts in

divorce proceedings t o award in vitro

embryos to the spouse who intends

to allow them to “develop to birth.”

Courts have generall y viewed

embryos as propert y—if property

deserving of spec ial respect—but

not as people. Abortion-rights pro -

ponents view the law as “ba ckdoor

right-to-life” legislat ion aimed at

establishing embryo p ersonhood.

Despite accusations t hat the law is

an attempt to give r ights to embryos,

architects of t he legislation claim

the main intent is to benefi t future

parents. “This new law st rikes a bal-

ance between the intere sts of both

spouses. One spouse can have the

embryos for the purpose of hav ing

children, and the other spouse ha s no

obligation as to any resulting ch ild,”

says Michael Clark, v ice president

of policy and general counsel at the

Center for Arizona Policy, a nonprofi t

conservative advoc acy group that

helped draft the law.

Arizon a legislators intro duced the

bill in response to the ca se of Ruby

Torres and John Terrell, a Phoenix

couple who completed in vitro ferti l-

ization before Torres underwent can-

cer treatment so they could later have

children. A preconception agre e-

ment mandated neither could use the

embryos w ithout the other’s consent.

When Terrell fi led for divorce

in 2016, Torres sought to keep the

embryos, argui ng it was the only way

she could have biolo gical childr en.

Terrell told the court he did not

want to have children w ith Tor res.

Based on their agreement and

other evidence, the court r uled

Torres had no right to use the

embryos. The judge ordered them

to be donated. Torres appealed the

decision, and a ruling is pend ing

following oral argu ments in June.

Arizona’s Parental Right to E mbryo

law can’t be applied retroactively a nd

shouldn’t a ect the ca se.

The law hasn’t yet been challenged,

but Richard Vaughn, founder of the

International Fertil ity Law Group in

Los Angeles, questions it s constitu-

tionality. “Based on existi ng Supreme

Court jurispr udence, it would fail

because it forces procreat ion,” he

says.

According to Judith Daar, a v is-

iting professor at the Univeristy

of California at Ir vine School of

Law and clinical profes sor at

Irvine’s medical scho ol, federal legis-

lation on the issue is unlikely bec ause

family law matters h ave historically

been governed by state law.

“Each state has t heir own public

policy. There’s no uniform approach,”

says Daar, who also chair s the ethics

committee of the A merican Society

for Reproductive Medicine, which

opposed the new Arizona law.

To bring clarity to the issue,

Vaughn and other members of the

ABA Family Law Sect ion’s Assisted

Reproductive Technologies Com-

mittee (of which Vaughn is imme-

diate-past cha ir) have formed a

subcommittee to ex plore model leg-

islation addressing the di sposition of

disputed embryos. When and if c om-

pleted, states could us e the group’s

work for guidance. But Vaughn

admits that proce ss could take years.

In the meantime, with t he number

of frozen embryos reach ing 1 million

in the U.S., Daar predict s that litiga-

tion isn’t going away: “What is likely

is that these disputes w ill continue to

pile up in courts,” she says.

—Mark F. Walsh

“EACH STATE HAS THEIR OWN

PUBLIC POLICY. THERE’S NO

UNIFORM APPROACH.”

—JUDITH DARR

Frozen human embryo s

Ruby Torres in her apartment

complex in Phoenix.