“…in the event of a separation or divorce, embryos cannot be used to create a pregnancy without the express, written consent of both parties…”
A woman’s desire to get pregnant using the fertilized embryos of her former partner “outweighs” his “interest in avoiding procreation,” the Arizona Court of Appeals ruled last week.
After Ruby Torres was diagnosed with breast cancer in 2014, she and now ex-husband John Terrell preserved embryos in the event that the chemotherapy she’d have to undergo would prevent her from being able to bear children, the Arizona Republic reported. Terrell later asked a Maricopa County Superior Court during the couple’s divorce to preclude Torres from impregnating herself with the embryos.
In a 2-1 decision, the appeals court overturned a trial court’s ruling that awarded the embryos to a third party, despite the couple signing an agreement stipulating they could not use the embryos without mutual consent. The embryos, the court ruled, should be awarded to Torres.
The majority wrote in its opinion that the Phoenix attorney’s “interests in the embryos—especially given that she gave up the opportunity to use another donor and she is likely unable to become a parent (biological or otherwise) through other means—outweighs Terrell’s interest in avoiding procreation.”
Terrell, who initially refused Torres’ request for him to be a sperm donor, could be financially responsible for any child that results from his former wife’s impregnation, the court recognized. In response to the case, Arizona legislators passed a state law last year that mandates that embryos from a divorced couple be given to the parent who wants to procreate. The law extinguishes the rights and obligations of the other parent. However, it does not apply in this case since the trial court’s ruling predates the existence of the law – meaning Terrell could still be required to pay child support if his ex-wife gives birth.
Torres testified before the court that she wants to implant the embryos only if she gets remarried.
In their opinion, the court leaned heavily on their interpretation of the facts as showing that the couple “sought to jointly preserve Torres’ fertility.” In her dissent, Judge Maria Elena Cruz criticized the majority’s dismissal of a clause within the IVF agreement signed at a fertility clinic by the couple.
According to court documents, the IVF agreement contained language stipulating that :
“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.”
“Do contracts matter?” Cruz wrote. “I believe they do.”
Some advocates of male parental rights argue that systemic injustices against fathers exist in the legal system. These groups at times overlap with the controversial MRA movement, whose members argue that feminist and progressive pushes for equality have resulted in systemic injustices against men and fathers.