Arizona woman cannot use frozen embryos against ex-husband's wishes

A woman cannot use her frozen embryos to have a baby following opposition from her ex-husband, the Arizona Supreme Court has ruled.

Ruby Torres had her eggs fertilised and the resulting embryos preserved in 2014 prior to cancer treatment that left her infertile. However, after the couple divorced in 2017, Torres' ex-husband John Terrell asked the courts to order the embryos be donated in accordance with the contract they signed at their fertility clinic.

'We are cognisant of the unavoidable emotional fall-out attendant to the disposition of the embryos here,' Justice Ann Scott Timmer wrote in the ruling, 'but the family court was required to enforce the parties' chosen disposition of the embryos as set forth in the Agreement.'

Initially, a trial court ruled that the contract allowed courts to determine whether the embryos were to be donated or implanted, stating Terrell's interest in not having children outweighed Torres' right to have a biological child. Torres took her case to the state's Court of Appeals, which overturned that ruling last March, agreeing the contract allowed courts to decide but that Torres' right to have a child prevailed over Terrell's right not to become a father.

The Arizona Supreme Court ruled that both the trial court and appellate judges were wrong in ruling that a contract clause allowed courts to determine the fate of the embryos. It agreed with Terrell, however, that the clause in question 'means that upon divorce or dissolution of the relationship, the parties chose to donate the embryos absent a contemporaneous agreement for use by one of them'.

'I haven't had a chance to speak to my client yet, but I know how she probably feels after what she's been through,' Torres' attorney Stanley Murray told AZCentral. 'It's disappointing, because we had gotten the Court of Appeals on our side.'

The Arizona Legislature changed the law in 2018 in response to Torres' case to allow a former spouse to use embryos against their former partner's wishes, but relieving the ex-spouse of parental responsibilities including the provision of child support. The change is not retroactive and does not apply to Torres' case.