FROZEN EMBRYOS & DIVORCE

Early this year, headlines circulated in Arizona, and even made national news, when a woman tried to use her frozen embryos after she and her husband got divorced. For Ruby Torres, her journey to becoming a mother was stopped short when the Arizona Supreme Court ruled that she could not use the frozen embryos without the permission of her ex-husband.

A new issue for the Court to consider in the modern era of technology, the story began in 2014 when Ruby Torres was diagnosed with cancer, requiring treatment that could cause infertility. She and her then boyfriend John Terrell decided to enhance their chances of becoming parents in the future by fertilizing her eggs and freezing the embryos using a process called cryopreserving, with future plans for in vitro fertilization (IVF). Both Torres and Terrell signed consent forms and an agreement that contractually bound them to the rules commonly attached to the process and procedure. The contract had options if the couple did not wish to use the embryos in the future. The couple could (1) discard the embryos, (2) donate the embryos to another couple, or (3) allow one partner to use the embryos with the permission of the other. This is what came to be the continuous battle in court.

In 2017, the couple separated and legally filed for divorce. The embryos were still frozen and viable. Torres wanted to become a mom, and after her cancer treatments, using IVF would give her the best chance. But Terrell did not want to father any children with his now ex-wife. After conflicting rulings in the trial court and the appellate court, the Supreme Court attempted to navigate these unfamiliar waters with grace and fairness, dually noting the conflicting personal and private issues that were now in their hands.

Ultimately, the court decided that since the contract was valid and enforceable and Terrell had not given permission, the fertilized eggs could not be used by Torres, and that they should be donated to another couple. The Court explained that Terrell’s right not to be forced to become a parent outweighs Torres’ right to procreate.

This complicated case triggered a new law in Arizona that allows a former spouse to use the embryos even if their partner objects, as long as he or she doesn’t require the ex-spouse to pay child support or take other parental responsibilities. Like with any other contract or big life decision, it may be wise to contact an attorney to help understand all of the ins-and-outs of what you and your spouse are signing up for.

Citing: Terrell v. Torres, 456 P.3d 13 (Ariz. 2020)

By: Maddison Koper

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Amar are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force. Hanna Amar is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association.  We handle Family Law cases in the areas of , custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

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