A recent decision of the Arizona Supreme Court has overturned the ruling of an appeals court barring Ruby Torres from using eggs she had fertilized with her ex-husband John Joseph Terrell.
In 2014, Torres had her eggs fertilized by Terrell before undergoing cancer treatment. The decision to fertilize the eggs came after Torres’ doctor had disclosed the treatment might leave Torres infertile. Terrell, who was Torres’ boyfriend at the time, ultimately agreed to participate in the in vitro fertilization process.
A month into the process, the couple signed a contract noting the embryos were to be joint property of the couple. The contract disclosed in the case of the couple splitting up the embryos may be donated or for the use of either party. For any of these actions to take place, however, the contract stated there had to be "express, written consent of both parties."
Four days after signing the contract, Torres and Terrell married. The IVF had produced seven viable embryos, and Torres was left infertile due to her cancer treatments. Three years later, they divorced.
Torres later asked Terrell’s consent to use the embryos, which Terrell denied. Terrell’s lawyer stated Torres was looking to “force” Terrell to become a father, making him legally obligated to pay child support under the Arizona law at the time. Torres’ attorney rebutted the argument stating Torres was looking to remarry and her fiancé would legally adopt the child, and Torres would agree to not hold Terrell financially liable. Despite all of this, Terrell continued to deny Torres access to the embryos.
The Maricopa County Superior Court ruled against Torres and said the embryos must be donated. They stated Terrell’s right to not want to be a father overrode Torres’ right to want to be a mother. Later the Court of Appeals overturned this decision.
In light of all this, the State of Arizona passed a law covering these situations in 2018. The law states that the mother has legal rights to the embryo; however, the father is no longer financially responsible if the mother uses the embryos. This law is not retroactive and thus means it cannot be applied to the case of Torres.
The Arizona Supreme Court overruled the appeals court’s decision, siding with the initial ruling this past Thursday. The court cited the initial contract between the couple before undergoing the IVF process, and since both parties cannot agree on the use of the embryos, Torres cannot use the embryos. The court ruled the embryos are to be donated to a third party.
Justice Ann Scott Timmer noted she was aware of the “unavoidable emotional fallout” in this situation, but “the family court was required to enforce the parties’ chosen disposition of the embryos as set forth in the agreement.” Though were these the agreed upon terms?
The contract gives two options of what to do with the embryos, and both parties must agree — which is not something they have done. This was the finding of the Maricopa court that stated, the "Embryo Cryopreservation & Embryo Disposition" agreement entered into by the parties did not resolve whether either party should get the embryos or whether they should be donated.”
The Arizona Supreme Court did use a specific section of the agreement that ultimately lead to their decision. A note in paragraph 10 reads “[embroys] cannot be used to produce pregnancy against the wishes of the partner. For example, in the event of a separation or divorce, embryos cannot be used to cause pregnancy without the express, written consent of both parties, even if donor gametes were used to produce the embryos”.
Though they cannot unanimously agree on whether to donate the embryos or allow Torres to use them, paragraph 10 cited by the court does lay out that a pregnancy cannot be caused if both parties do not agree. So, despite Torres not wanting to donate the embryos, she cannot legally use them to become pregnant herself since Terrell does not agree. Meaning there are only two options of what to do with the embryos according to paragraph 10; discarding the embryos or donating them. Since neither Terrell nor Torres wanted the embryos discarded, the court felt they were compelled to force the donation of the embryos.
Personally, I do not agree with the decision. Paragraph 10 does say the embryos cannot be used to cause pregnancy, but there is no reason for the court to rule in favor of compulsory donation. I believe the middle ground is discarding the embryos, simply because it is uncertain whether or not Torres would like the embryos to be donated. It is truly sad Torres will not be able to become a biological mother because of a situation like this, but there are plenty of children needing homes that are available for adoption. Torres still has the ability to make a difference in a child’s life and raise a good family.
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