Frozen Embryos in an Arizona Divorce

Frozen Embryos in an Arizona DivorceWhether you’ve been dealing with infertility or you decided to plan ahead for the future, you could have undergone treatment that resulted in the cryopreservation (freezing) of embryos. These embryos could be used in the future to achieve a pregnancy but what would happen to them in the case of a divorce? A new Arizona regulation sheds some light on the issue but it also causes quite a lot of controversy.

SB 1393: Parental Right to Embryo

Arizona Bill SB 1393 became effective in Arizona on July 1, 2018. In the case of a divorce, the bill states, an Arizona court will have to provide the frozen embryos to the spouse who plans to use them for the purpose of having a baby.

The partner that isn’t given the embryos will have no parental responsibilities with respect to an eventual child resulting from such a pregnancy. According to supporters of the bill, it gives people hopes of parenthood even in the aftermath of a divorce. Opposition, however, believes that the bill will force people to become parents against their will (regardless of the no parental responsibility clause).

While cases of frozen embryos being a part of a “custody” dispute are currently rare, the number of couples undergoing fertility treatments is growing. Over one million babies have been born in the US using in vitro fertilization (IVF) and other assisted reproductive techniques. In 2015 alone, the number of live births resulting from assisted reproductive techniques was 68,000.

Implications of the New Arizona Regulation

The new Arizona law is the first of its kind in the US. It was inspired by one individual case – that of Ruby Torres and John Joseph Terrell.

In 2014, Torres was diagnosed with breast cancer and decided to undergo IVF treatment. Torres and her then fiancé Terrell got seven embryos that were frozen until she had gotten medical clearance for an embryo transfer to take place. By that time, however, the couple was already looking forward to getting a divorce.

At the time, a judge ruled out that Torres did not have a right to using the embryos.

Based on the new law, Torres would have the right to get an embryo transferred, potentially resulting in a pregnancy. The new law gives frozen embryos additional legal rights, getting them treated as fully-fledged human beings.

The Torres-Terrell case contributed to Republican Arizona legislators coming up with the new bill. The bill supposedly provides a compromise solution – it allows one person to make use of frozen embryos, even after a spouse no longer wants to engage in the process. The spouse is freed from parental responsibility but the question of somebody else using their DNA to have children remains.

Torres has appealed the court ruling and now that the new Arizona rule is in effect, she will probably be granted the right to use the embryos without needing to get the consent of her former husband.

Keep in mind, however, that the new law cannot be applied retroactively.

Until present and in most parts of the country, judges tended to side with the partner who did not want to have the embryos used to achieve a viable pregnancy. In a number of notable cases throughout the US, frozen embryos had been destroyed on the basis of court orders, instead of enabling a partner to achieve a pregnancy with them in the aftermath of a divorce.

The legal approach has been to treat embryos as property subject to division in divorce proceedings. The new Arizona law takes a different stance – an embryo is perceived as a person even before implantation has occurred. Obviously, such an approach contributes to serious controversy, affecting reproductive autonomy and also leading to serious issues whenever a couple already has children before splitting up. If a frozen embryo is used afterward, the child will have the same DNA as the other two kids but legally, it will not be treated in the same way.  Click here for more information on military divorce in Arizona.