Frozen Embryos in an Arizona Divorce

frozen embryos in an arizona divorceArizona passed Senate Bill 1393 in the 2018 legislative session, dictating which party in a divorce will have the rights to frozen embryos.  It is a legal conundrum that family law attorneys and law professors love to talk about.  But since in vitro technology has advanced and the number of couples choosing to freeze embryos has increased, the legal world needs to come to a conclusion.

A notable celebrity case includes the dispute between Sofia Vergara, the star of Modern Family and her ex-fiancé Nick Loeb.  Vergara and Loeb created two embryos.  Loeb moved to Louisiana, a state where embryos created through IVF but not implanted are considered “judicial persons”.  Loeb sued Vergara, claiming she had abandoned and neglected the two embryos by leaving them frozen and without the ability to be born.  This case played out in the media, but also brought this important legal question to light.

What Does the Recent Court Decision Mean?

With the passage of this law, Arizona is the first state in the United States to pass a law allocating frozen embryos in separations and divorces. Senator Nancy Barto put forth this legislation. The bill mandates that embryos should go to the party in the divorce or separation most likely to develop to birth.  In turn, the parent who is not awarded the embryos is relieved from parental responsibilities for any child that is produced from those embryos.  However, if a parent was not awarded the embryos but wants to be considered a parent, they must provide written consent.

The law is clearly unique being the first of its kind. This law was the result of an Arizona Supreme Court case centering on the couple of Ruby Torres and John Terrell.  Torres and Terrell created seven embryos together before Torres underwent cancer treatment.  Sometime later, the couple decided to get a divorce. In the proceedings, Torres wanted to keep the embryos.  Because of her cancer and its treatments, she was likely unable to become pregnant naturally.  Terrell argued against Torres in the proceeding, stating that he did not want his genetic materials involved in her future pregnancy, if she ever decided to move forward with the embryos.  The Arizona Supreme Court ruled that Torres could not use the embryos to become pregnant without Terrell’s consent. However, if she did not use them or ever get Terrell’s consent, she could not destroy the embryos.  She must donate them to people and couples who are infertile.

What Does the Court Decision on Frozen Embryos in Arizona Divorce Mean?

This Arizona Supreme Court case is clearly an example where the law has not caught up with technology.  There should be an avenue of what to do with embryos in the event of separation or divorce.  However, many on both sides disagreed with the Arizona Supreme Court and the Legislature for adopting this type of law.

For those considered pro-choice, many see this piece of legislation as favoring those with a pro-life perspective.  In their view, the embryos should not become children if one of the parents disagrees.  For pro-life people, many are happy with the outcome, suggesting the law intends for the embryos to become children, no matter what the outcome.

Courts in custody disputes in other states have ruled on varying degrees in these types of disputes.  Some have ordered them to be destroyed.  Others have ordered that the embryos remain frozen indefinitely until an agreement can be made, if ever, or donated for research purposes.

This case and the Arizona legislation represents a key question in these disputes.  Are the embryos property or human life?  Legislatures, if they decide to act, will have to make a choice.