Embryos in a Divorce in Arizona
The Arizona Court of Appeals, in its published opinion in Terrel v. Torres, — P.3d—, Ariz.App. (2019), had to consider what to do with frozen embryos in a divorce when the parties had signed an in vitro fertilization agreement but disagreed on the interpretation of the terms.
Before their marriage, Husband and Wife executed an in vitro fertilization (“IVF”) agreement. The IVF procedure yielded seven viable embryos that were cryogenically preserved for future use. After two years of marriage, Husband filed for divorce.
The seven embryos were still preserved, and there had been no attempt at implantation. Husband and Wife could not agree on the disposition of the embryos, specifically, whether the court could award the embryos to Wife so that she could achieve a pregnancy.
Neither party contested the validity of the IVF agreement. The dispute arose from the interpretation of the contract. The agreement noted that “in the event of a separation or divorce, embryos cannot be used to create a pregnancy without the express, written consent of both parties…”.
However, Husband and Wife’s agreement also stated that in the event of a divorce, disposition of the embryos, including the use to achieve pregnancy, would be controlled by the court.
Contract Versus Balancing Approach on Embryos in an Arizona Divorce
After reviewing how other states have handled this issue, the Court of Appeals adopted the “contract approach” for deciding this issue. Under the contract approach, an agreement between parties regarding the disposition of embryos is generally presumed to be valid and enforceable.
If parties have no agreement or if the agreement leaves the decision to the court, then the court will use the “balancing approach” to decide. In the balancing approach, the court balances the competing interests of the parties.
The critical component of the balancing approach is that the party wishing to avoid procreation should prevail if the other party has a reasonable possibility of achieving parenthood without the use of the embryos in question.
Wife’s Interest in Embryos Outweighed Husband’s Interest in Avoiding Procreation
The Court of Appeals first resolved the contract issue and ruled that the parties’ affirmative agreement to have the court control the disposition of the embryos overcame the more general note in the agreement that required both parties’ written consent to use the embryos to create a pregnancy.
Having concluded that the IVF agreement placed the decision with the court, the Court of Appeals then used the balancing approach and determined that due to a variety of factors, Wife had less than a one percent chance of having a biological child and that adoption was unlikely.
Because of this, the Court of Appeals ruled that Wife’s interest in the embryos outweighed Husband’s interest in avoiding procreation and remanded the case to the trial court for an order awarding the embryos to Wife.
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