The state’s high court has agreed to wade into the controversial issue of the rights of parties in a divorce to decide what happens to the eggs they previously had fertilized and whether one can be forced to become a parent.
In a brief order August 28, the justices of the Arizona Supreme Court said they want to review whether the Court of Appeals properly interpreted a legal agreement about who gets to use the frozen embryos when the formerly married spouses cannot agree.
But the bigger issue could be whether the justices will direct courts handling such cases to balance the competing interests of the parties in deciding whether to let an embryo be implanted or ordering it donated to someone else – or even destroyed. That would put trial judges in the position of having to consider whether the argument of one person to bring the embryos to life can be outweighed by the argument of the other who does not want that.
And that even could result in situations where a now-former spouse who did not want the embryos brought to term and does not now want to be a parent actually being legally responsible for child support.
Less clear is how much of a precedent will be set by the Supreme Court.
In 2018 – and directly in response to this case – the Arizona Legislature approved a new law saying that judges must grant viable embryos to whichever parent will allow them to be born, regardless of what a couple decided when first having an embryo frozen.
On paper, that means Arizona law now reads that a man’s decision he no longer wants to be a parent can be overridden if his ex-wife wants to become a mother, using an embryo he helped to create. But it also means that a woman could wind up having no say as her former husband gives the frozen embryos to a new spouse who would give birth to a child who is biologically related to her.
The constitutionality of that new law, however, remains untested. And that leaves only this case for the justices to decide the questions of contracts, the rights of the biological parents – and whether the state can mandate parenthood on someone.
Court records show that Ruby Torres was diagnosed in 2014 with bilateral breast cancer, with her oncologist saying she would need to begin chemotherapy within a month. He also told her that treatment would impair her ability to get pregnant.
John Terrell, then her boyfriend, agreed to be the donor after learning she had asked someone else.
An agreement provided by Bloom Reproductive Institute, which was handling the procedure, spelled out that any resulting embryo would be their joint property. Both also agreed to a provision that said in the case of divorce that it would be up to a judge to decide whether to allow the embryo to be used to achieve pregnancy or to donate it to another couple.
What ultimately occurred is the trial judge directed the fertility clinic to donate any remaining embryos to a third party or couple, concluding that Terrell’s “right not to be compelled to be a parent outweighed Torres’ right to procreate and desire to have a biologically related child.”
But the Court of Appeals, in a split ruling earlier this year, called that decision flawed.
On one hand, appellate Judge Jennifer Campbell, writing for the majority, acknowledged that the contract Torres and Terrell signed spells out that in the event of a separation or divorce the embryos could be used solely with the “express, written consent” of both parties. But she said that Terrell should not be allowed to use his veto power.
“Applying this approach invites individuals to hold hostage their ex-partner’s ability to parent a biologically related child in order to punish or to gain other advantages,” she wrote. “We decline to give one party a blanket veto.”
Campbell also said what weighs in favor of Torres is that she has a less than 1 percent chance of becoming pregnant by normal means and only a “remote possibility” of adoption or insemination with a donor embryo.
The decision by the Supreme Court to review that ruling is not entirely a surprise. Appellate Judge Maria Elena Cruz said the decision by her colleagues was legally wrong. She said the two other judges on the panel were ignoring a constitutional provision which says the state cannot interfere with contracts.
She agreed that the agreement the couple signed does have language leaving the fate of the embryos up to a trial judge. But Cruz said that fails to recognize the mutual-consent requirement to use them.
“Nothing in the agreement states that a court is free to disregard the other terms of the agreement when it decides the question,” she wrote. She also said Torres is not contesting the provision about the “express, written consent of both parties,” saying the majority has “wholly cast (that language) aside.”
And there’s something else. Cruz also said the majority ignores the fact that there’s another side to the legal right to procreate – the right to avoid procreation.