Arizona Courts to Decide Fate of Frozen Embryos

July 30, 2018

The rights to custody of frozen or cryo-preserved embryos or gametes in the event of death or divorce is a topic making its way into the news and legal fora. This article will look at a recent legal dispute involving the disposition of a divorced couple’s frozen embryos that is to be decided soon by an Arizona appellate court as well as other recent cases and pending legislation addressing this topic.

Washington Post Article, Ariz. law upends debate over embryos, provides some of the factual background surrounding the dispute between an Arizona couple over the disposition of their frozen embryos.

In the Torres case, Roby Torres, received a diagnosis of severe breast cancer in 2014. Shortly after that Torres and her then boyfriend John Terrell went to a Reproductive clinic and had seven embryos formed and frozen. Four days after that, they married. Three years later, in 2017, following treatment, Torres was cleared to attempt to become pregnant, but subsequently found out that Terrell was having an affair. Divorce proceedings commenced.  Despite offers by Torres to Terrell for compensation, and promises of no responsibility financial or otherwise, he refused. Ultimately, the trial court judge held that Torres had no right to use embryos. However, the judge said that the embryos should not be destroyed and instead put up for donation. Torres appealed this decision.

As the appeal of Torres’ case was pending, Arizona legislature passed a law on Dissolution of Marriage – Embryos that was signed April 3. 2018.  This law requires that an action that involves the disposition of in vitro human embryos, “the court shall award the in vitro human embryos to the spouse who intends to allow the in vitro human embryos to develop to birth.”

However, this law will not be applied retroactively and will not affect the ultimate outcome of Torres’ case which is to be decided in the very near future as oral arguments were heard in June, 2018. The Amicus Curiae brief in Support of Neither Party and the Appellant’s Reply Brief for the Terrell v. Torres appeal provide further interesting arguments that pertain to balancing the interests of each former spouse in making a decision on the disposition of human embryos.

Watching how this case develops as well as future cases within the state of Arizona involving the disposition of human embryos in divorce proceedings under the new law will be interesting and worthwhile as this becomes a more prevalent topic.

IN RE the Marriage of Mandy Rooks, and Drake Rooks is another case to be decided later this year in Colorado pertaining to the disposition of cryogenically frozen pre-embryos in a dissolution of marriage.  The appellate court in this case affirmed the trial court which awarded the embryos to the husband who argued that they should be destroyed. The lower court applied two approaches in reaching its decision – the “contract approach” and the “balancing of interests approach.”

“The contract approach” is described in In re Marriage of Rooks requires the enforcement of an agreement between spouses entered into when the embryos were created and cryostored as to the disposition of the embryos on dissolution of marriage. The Colorado appellate court here looked to Davis v. Davis, a Tennessee case, which held: “disputes involving the disposition of pre-embryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed.”

“The balancing of interests approach” is designed to weigh the interests of the parties. In the Davis decision, this meant weighing the husband’s interest in avoiding procreation more favorably. “Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the [ ]embryos in question.” Id.

Other cases relied on in this area include: Szafranski v. Dunston: upholding lower court’s ruling that the interests of a woman, who had embryos created with a male friend before undergoing chemotherapy, were paramount because she had no other option for having a biological child);  J.B. v. M.B.:  ruling in favor of the wife’s interest to avoid procreation after considering that the husband was already a father and was capable of fathering other children); and, Reber v. Reiss, upholding ruling in favor of forty-four-year-old wife, who had no children and had undergone IVF before cancer treatment in order to preserve her ability to conceive a child.

Proposed Legislation on the disposition of cryopreserved embryos or gametes is also pending in New York – see 2017 New York Senate Bill No. 5835 which states: “The form prescribing directives as to the disposition of cryopreserved gametes or embryos shall include, but not be limited to, choices for disposition under the following circumstances: (i) death of a party; (ii) the party’s separation or divorce; (iii) the party’s decision to abandon by request cryopreserved gametes or embryos; or (iv) the party’s abandonment of cryopreserved gametes or embryos by failure to pay storage fees.”

Tracking other states legislation and case law in this area will also be interesting in the coming months and year given these interesting and diverse precedents.

Image source: REUTERS/Michael Dalder

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