Embryo Wars: The Court Of Appeals Strikes Back

At the end of the day, contracts do matter, and parties should be able to dictate their own reproductive futures.

Last year, Arizona passed a law that applied to any divorce case where the couple had cryopreserved embryos (the Embryo Statute). The law didn’t exactly protect the separation of powers, and instead ordered that Arizona judges must award the embryos to the spouse that will give “the best chance for the in vitro human embryos to develop to birth.” Going even further, the law prohibits judges from treating as binding any prior agreement between the parties regarding the disposition of the embryos.

The case that inspired this law was that of Ruby Torres, a Phoenix-based lawyer. In 2014, Torres was diagnosed with an aggressive form of cancer. She was advised by her doctors that she should start treatment immediately, and that treatment would likely make her infertile. She had a narrow window of time to undergo fertility treatments. Specifically, she need to undergo an egg retrieval and then fertilization and cryopreservation of resulting embryos in order to preserve her chance at a future biologically related child, before starting cancer treatments to save her life. While ova (egg) preservation without fertilization is now a more viable option, at that time, Torres’s fertility doctor recommended that her retrieved eggs be fertilized in order to increase the chance of conception down the road.

The Case Of Boyfriend Vs. Ex-Boyfriend

Torres naturally turned to her boyfriend at the time, John Joseph Terrell, to see if he was willing to donate his sperm. He initially said no. So she found another wiling sperm provider — an ex-boyfriend agreed to help. That proved shrewd, because Terrell quickly changed his mind upon learning that Torres’s ex-boyfriend would be donating sperm to her, and he agreed to help. (Nothing like being shown up by an ex-boyfriend willing to donate sperm to your current girlfriend.)

Before going through the creation of embryos together, Torres and Terrell signed a consent form with the clinic. The contents of that consent form, and interpretation thereof, are the cause of much of the dispute in this case. Hold that thought for one second though.

Torres and Terrell married shortly after the creation of the embryos (which he testified was only to help provide Torres health insurance, but that he would not have married her otherwise — ouch). Two years later, they divorced. The trial court found that the consent form prohibited either from using the embryos without the other’s consent. With Terrell objecting to Torres’s use of the embryos, the trial court turned to the next disposition option agreed upon in the consent form — donation of the embryos to others for conception purposes.

After the trial court’s ruling, Arizona legislators found Torres’s story persuasive and the Embryo Statute was passed. And Torres appealed the ruling.

Sponsored

Last week, the Arizona Court of Appeals ruled in favor of Torres, awarding her the seven cryopreserved embryos to use for her own conception purposes. The Court of Appeals noted that since the statute was not in effect at the time the trial court made its decision, it was not bound by the statute in reaching a resolution. So Torres did not win on appeal because she happened to be the party most likely to develop the embryos to birth. So what was the justification?

Contracts Matter

Both the majority and the dissent spent significant time analyzing the consent form that the parties signed. Specifically, the consent form had a note stating that the embryos “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 create a pregnancy without the express, written consent of both parties, even if donor gametes were used to create the embryos.”

But a few pages later in the form, the following provision appears: “In the event the patient and her spouse are divorced or the patient and her partner dissolve their relationship, we agree that the embryos should be disposed of in the following manner (check one box only).” Torres and Terrell selected, “[1] A court decree and/or settlement agreement will be presented to the Clinic directing use to achieve a pregnancy in one of us or donation to another couple for that purpose.”

The majority took the second provision as the exact express written consent contemplated by the first provision. That meant that the court gave itself the power to decide the fate of the embryos. The dissent, on the other hand, strenuously disagreed, and would have held that the first provision, barring procreation, controlled the dispute.

Sponsored

In good news, all of the judges agreed that contracts do matter, and that parties should be able to dictate their own reproductive futures (in contrast to the Embryo Statute). The majority follows the national trend when it comes to embryo disposition analysis, as laid out in the Davis case back in 1992. Pursuant to that framework, after first finding that the agreement signed by the parties is not dispositive, the court turns to step two, which is balancing the parties’ interests. Here, it’s hard to find a more compelling case than that of Torres, especially in light of national case law.

While essentially every embryo disposition case in the county has gone in favor of the party not wanting to reproduce, there are two distinct notable exceptions: Szafranski and Reber. Both cases involved a woman diagnosed with cancer who underwent fertility preservation prior to cancer treatment, and then the sperm provider changed his mind. Familiar facts, right? In both cases, the court ruled that the woman’s interest in a biological child outweighed the sperm provider’s interest in not having a child. Torres’s facts fit squarely within these exceptions to the generally rule in favor of non-use (minus the content of the consent form, debatably). And the ex-boyfriend fact in the Torres case, in my book, makes her situation even more compelling.

Two notes to all future cancer survivors finding yourself in a similar position: First, egg cryopreservation has gotten much better, so consider that as a much more viable option. Second, if you do need to fertilize your eggs, go with the valiant ex-boyfriend who steps up in a time of need. Or, better yet, an anonymous sperm bank donor. Definitely skip the jealous boyfriend’s offer, given only after an ex offered.

Overall, it’s good to see the Arizona Court of Appeals working to act reasonably and in line with the majority of the country — even if Arizona’s legislature isn’t so inclined.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.