In Terrell v. Torres, the Arizona Court of Appeals reversed the family court’s decision regarding the disposition of cryopreserved embryos.

In June 2014, Torres was diagnosed with aggressive breast cancer. She was advised that necessary chemotherapy would induce menopause and potentially impair her ability to become pregnant.

Torres visited a fertility clinic and decided to undergo in vitro fertilization (“IVF”) to preserve her eggs. Torres asked her then boyfriend, Terrell, to donate his sperm. Terrell initially refused, but changed his mind after a former boyfriend of Torres’ volunteered to be the donor.

In July 2014, the parties executed an IVF Agreement which contained the informed consent and various terms and conditions of IVF, including a provision that addressed disposition of embryos in the event of “separation, divorce, death or incapacitation” of either party.

The IVF Agreement explained that the science and legality of cryopreserved embryos is subject to change and provided three options regarding the disposition of the embryos:

  1. Discarding the cryopreserved embryo(s).
  2. Donating the cryopreserved embryo(s) to another couple in order to attempt pregnancy.
  3. Use by one partner with the contemporaneous permission of the other for that use.

The Agreement more generally provided that “[d]isposition may also be controlled by the final decision of a court or other governmental authority having jurisdiction” and included a note that said:

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.

The parties mutually selected to have the court decide the disposition of embryos.

Four days after signing the IVF Agreement, the parties married. Two years later, Terrell filed a petition for divorce. At that time, there were seven viable embryos still preserved as the couple never attempted implantation.

During the divorce, the primary issue was whether the family court could award the embryos to Torres to become pregnant. Terrell originally argued that the embryos should be destroyed, then argued that the embryos should be awarded to him to prevent a pregnancy against his wishes, and finally he argued that the embryos should be donated to a third party.

Neither party contested the validity of the IVF Agreement. Terrell testified that he signed it only because it seemed “honorable” to do so under the circumstances. He further testified that he only married Torres to enable her to obtain health insurance when she was diagnosed with cancer.

Torres and her fertility expert testified that without the embryos Torres would be unable to become pregnant and that her risk for future cancer made it unlikely she would be considered for adoptive placement.

Because there was no Arizona case law or statutory authority to address disposition of embryos, the family court reviewed decisions from other jurisdictions and applied a “balancing approach” to analyze the parties’ competing interests. Ultimately, the family court decided that Terrell’s “right not to be compelled to be a parent outweigh[ed] [Torres’] right to procreate and desire to have a biologically related child.” It directed the Fertility Clinic to donate the remaining embryos to a third party.

Torres appealed.

The Court of Appeals adopted a different analysis, called the “contract approach.” Under the contract approach, agreements between gamete donors regarding the disposition of embryos will be presumed to be valid, binding, and enforceable. The Court reasoned that this approach left “deeply personal decisions involving reproductive choice in the hands of the parties.”

If the parties did not have a prior agreement or if the prior agreement leaves the decision to the court, the family court should apply the balancing approach. The Court of Appeals further held that “the party who does not wish to become a parent should prevail if the other party has a ‘reasonable possibility’ of becoming a parent without use of the embryos.” (emphasis added).

When it applied this standard to the current case, the Court of Appeals found that the parties intended for the family court to decide the fate of the embryos. It then balanced the parties’ interests and determined that Torres’ should be awarded the embryos based on the purpose of the IVF and the statistical unlikelihood of her becoming pregnant without the embryos.

Note: While this appeal was pending, the Arizona legislature adopted A.R.S. § 25-318.03 which directed courts to “[a]ward the in vitro human embryos to the spouse who intends to allow the in vitro human embryos to develop at birth” even if the spouses have a disposition agreement. However, by its language, this statute only applies to married couples.