Family Law

Beware Of IVF In Arizona. If Proposed Legislation Passes, Strangers Could End Up Having Your Genetic Children

New Arizona law could allow strangers to have 7 of your kids against your will.

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Photo by Flickr user Daniel Spiess

Talk about a terrible effort at legislation. The latest embryo disposition bill out of the Grand Canyon State, SB 1392, would make couples really think twice about undergoing in vitro fertilization together. The bill proposes that in the case of a divorce, if a couple has leftover cryopreserved gametes, the person who wants to use the embryos for reproductive purposes will be awarded the embryos. And if both spouses want to use the embryos, the court will have to decide which spouse would be able to use the embryos “in a manner that provides the best chance for the in vitro human embryos to develop to birth.” Wait, what?!

A Sympathetic Case Should Not Ruin IVF For Everyone.

Recently, Arizona legislators heard testimony from Ruby Torres, a woman who experienced a sympathetic and familiar situation for many women. Torres focused on her career before starting a family, attending law school to become an attorney. That’s a familiar story for many of us lawyer moms. But after graduating law school and landing a job at a firm, Torres was tragically diagnosed with breast cancer. Before beginning cancer treatment, Torres underwent egg retrieval and in vitro fertilization (IVF) with her then fiancé, John Joseph Terrell. That way, if Torres recovered from cancer, the couple would still have viable embryos to have a biological child. In good news, the cancer treatment was successful. But in bad news, Torres and Terrell’s relationship went south, and the couple filed for divorce.

The Maricopa County judge presiding over their divorce was faced with the disposition of the couple’s property. That included their regular worldly goods, but it also included their seven fertilized embryos. A consent form signed by both parties at the fertility clinic specified that neither party could use the embryos without the written consent of the other person. That is a typical provision, and one that I generally advocate in my practice and scholarship. But the judge’s ruling surprised everyone, and not in a good surprisey kind of way. Instead of ordering that no one can use the embryos without the permission of the other, or ordering that the embryos should be destroyed, the judge ordered that the embryos be donated for someone else to use for conception! That ruling meant that Torres was not personally allowed to use the embryos to have her biological children, but that strangers who adopted the fertilized embryos could do so. Not only that, but Terrell –who did not want any children with Torres at this point –now could have up to seven biological children being raised by strangers. Wow!

Right Not To Reproduce Is Currently King. 

Fortunately, the Torres case is the extreme outlier. For those of us following along with embryo disposition cases across the country, almost every US case of a couple fighting over embryos ends in favor of the party not wishing the embryos used for reproduction. In other words, the right of one person not to reproduce usually outweighs the right of someone else to reproduce. There are notable exceptions that present similar fact patterns as the Torres case. In both Szafranski v. Dunstan in Illinois and Reber v. Reiss in Pennsylvania, a woman underwent IVF with her partner to preserve her fertility after a cancer diagnosis. In both cases, the couple split and the male gamete-provider objected. But the court ruled in favor of the woman wishing to use the embryos. In each case, the court reasoned that this was the woman’s only chance to have biological children, and under such special circumstances, her right to reproduce outweighed the right not to reproduce.

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Pending before the Colorado Supreme Court is the Rooks case, which I have written about before. In that case, the female ex-spouse is arguing that she should be able to use the remaining cryopreserved embryos created by her and her male spouse for reproduction. Her attorney argued before the Court that by going through IVF with his wife, Mr. Rooks was consenting to the use of the embryos in reproduction. Just as when a couple has marital relations the old-fashioned way.

Embryos Rights Over Rights of Parties to Contract.

Notably, the Arizona bill goes even further than the cases finding an exception to the normal no-conception rule. It goes so far as to always override any contractual agreement made between the parties before going through IVF. So even if a couple agreed that, like with the Torres case, neither party can use the embryos without the other’s consent, or that one party should have the embryos, that agreement is unenforceable. Instead, the court must award the embryos in favor of the party wishing to use them for reproduction.

Enforcement?

Stranger still, in the rare case where both ex-spouses want to get divorced, but still want to have kids connected to their ex, the bill will make things exceedingly awkward for courts. How should a court analyze which party provides “the best chance for the in vitro human embryos to develop to birth.” I guess that’s, like, the party with a uterus? Or maybe the need to hire a surrogate will make it the party with the most financial resources? The bill would also create some perverse incentives. A party who doesn’t want to reproduce at all might have to lie and claim that they do, win the court case, and then not use the embryos. Of course, this opens the door to a court monitoring the speediness with which the party possessing the embryos is really trying to have a baby in good faith. Creepy!

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Chilling effect. 

If this bill goes into effect, everyone should think hard before undergoing IVF in Arizona. It is one thing to need to seek medical assistance with the hopes of having one or two children. But that same procedure now risks that your ex-spouse, or even complete strangers, can end up having your biological children against your will. Even living near the Grand Canyon isn’t worth that price.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at [email protected].

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