As the number of frozen embryos in the United States soars into the millions, disputes over ownership have also been on the rise. Judges often rule in favor of whoever doesn’t want the embryos used — sometimes ordering that they be destroyed — following the theory that no one should be forced to become a parent.
Arizona is taking the opposite approach. Under a first-in-the-nation law that went into effect July 1, custody of disputed embryos must be given to the party who intends to help them “develop to birth.”
This legislation could have a dramatic impact on fertility medicine, as well as the debate over when life begins. It is already fueling an argument by some conservative groups that frozen embryos are not mere tissue over which people may exercise ownership rights but human beings who should be accorded rights of their own.
“Most people believe that frozen embryos should have a chance at life,” state Sen. Nancy Barto, a Phoenix Republican, said in introducing the bill.
The bill was inspired by a case between Ruby Torres and John Joseph Terrell. When their marriage fell apart, the most contentious issue between Torres and Terrell was the fate of their frozen embryos. The seven embryos in storage were created with her eggs and his sperm before Torres underwent chemotherapy and radiation treatment for breast cancer.
During their divorce proceedings, Torres, 37 — who wanted to use the embryos to have a baby — told the judge that the embryos were probably her only chance to have biological children. But Terrell stated that he had no interest in having a child with Torres.
In this case, Maricopa County Superior Court Judge Ronee Korbin Steiner had to balance Torres’s probable inability to have a child with Terrell’s desire to not be a father.
The couple dated off and on in 2014 when Torres was diagnosed with a severe form of breast cancer. In July, they went to the Bloom Reproductive Institute in Scottsdale, where doctors retrieved 14 eggs from Torres’s body and fertilized them with Terrell’s sperm. They were married four days later.
In testimony in family court, Terrell said he loved Torres at the time but that they didn’t have a “full relationship,” because they saw each other only occasionally. He said he married her because she needed health insurance and that providing sperm for the embryos seemed “like an honorable thing just to do for her.”
“She had called me and she was in tears” over the cancer diagnosis, Terrell told the judge. “And the way I understood it, she — it was basically a death sentence.”
Torres remembers things differently. She said she was a new lawyer and he was working nights at a Veterans Affairs hospital, so they didn’t see much of each other except on weekends. Terrell was supportive during her double mastectomy and radiation treatments, she said.
Three years after the treatments, Torres said her doctors cleared her to try to become pregnant. But around that time, she found out that Terrell was having an affair, and they agreed to divorce.
“I thought we had a good marriage,” she said in an interview with The Washington Post, “but maybe it was something that I created in my mind.”
Assisting in cases across the nation, the Thomas More Society, an antiabortion group, asks judges to consider embryos “children” and to make decisions based on their best interest. The society argues that a person who creates an embryo in preparation for in vitro fertilization has “voluntarily exercised his procreational rights” and that the resulting embryos “cannot be legally terminated at the whim of others.”
Abortion rights advocates argue that any legal endorsement of those arguments, if upheld, would effectively gut the right to an abortion.
In Colorado, Mandy and Drake Rooks are fighting over six embryos. Mandy Rooks wants them preserved for future use, while Drake wants them discarded. After a lower court ruled in favor of Drake Rooks, Mandy Rooks appealed. The state Supreme Court heard oral arguments in January focused on balancing the procreative rights of the two, and a decision is expected later this year.
Other major cases have gone in different directions. In Illinois and Pennsylvania, embryos have been awarded to women, who could otherwise not reproduce. In other cases, embryos have been ordered to be donated to research or to remain frozen indefinitely until a time when there is “mutual agreement.”
Attorneys claim the right not to procreate is protected by the Constitution, citing Roe v. Wade and rulings that protect people’s access to contraception. With conflicting rulings in various states, many predict the issue will ultimately be decided by the U.S. Supreme Court.
Some courts consider embryos property — or “chattel” in legal terms — but figuring out what to do with them is not as easy as dividing them up evenly like other assets. Since they weren’t children who had been born, they were not subject to child custody laws, either.
Torres offered Terrell every concession she could think of: She said he wouldn’t bear any responsibility for the child, but if he wanted to be an active parent, she would accommodate that, too. She even suggested paying him for use of the embryos, offering to turn over her entire retirement account.
“I offered anything and everything he could possibly want,” Torres said in the recent interview.
Terrell was resolute. “It’s like a ticking time bomb,” he said in court, because of “child support or that child when coming of age coming for me.”
In August, the judge said Torres had no right to use the embryos but that they should not be destroyed either. Instead, they should be put up for donation.
Torres was shocked. “So both of us would have a child out there,” she said. “We just wouldn’t be raising the child, and 18 years down the road if she or he wanted to find us he or she can and probably will.”
She is appealing the decision. Oral arguments were made in June, and a ruling is expected any day.
News of the controversial ruling soon reached the Arizona legislature. Barto said she wanted to help people in Torres’s situation. If someone selects Torres’s embryos, Barto told fellow legislators, “there will be children out there that Ruby will never be able to meet or care for” and the children “will never be able to know their genetic history.”
The state senator also recognized the rights of those who don’t want their embryos used. The bill provided a resolution to the possibly messy financial obligations by providing that they would not be liable for child support.
Some of the other lawmakers vehemently objected.
“The legislature should not come between a woman, her doctor, her faith and her family,” argued Sen. Steve Farley, a Tucson Democrat, according to the local Daily Courier.
Fertility doctors, consumer advocacy groups and other organizations also weighed in.
The Center for Arizona Policy, a conservative lobbying group that has successfully pushed antiabortion legislation in the state, supported the measure, saying the bill would “lead to more consistent rulings.”
The American Society for Reproductive Medicine, which represents doctors, nurses and other professionals who work on fertility issues, opposed the measure, arguing that it would have a profound impact on reproductive medicine.
To protect patient choice, the measure would force clinics to ship embryos out of state to be stored, increasing the risk of accidents, the society argued. It said the measure would hurt stem-cell research — which many believe is critical for progress in treatments for Parkinson’s, Alzheimer’s and a host of other diseases and conditions — because scarce embryos would be tied up in legal battles and not be available to be donated to science.
The Arizona legislature made quick work of the bill. The Senate passed it 18 to 12 in February, the House 33 to 25 in March, and it was signed into law on April 3.
Since the law cannot be applied retroactively, it should not directly affect the Torres case. In a friend-of-the-court brief, the Academy of Adoption and Assisted Reproduction Attorneys urged judges in the Arizona Court of Appeals, where their case now stands, to balance the interest of each former spouse.
“In these cases, the parties do not have equal claims: the constitutional protection against compulsory parenthood is in most situations greater than any procreative interest in pre-embryos,” the group wrote.
Claudia Work, Terrell’s attorney, said she believes the new law “was rushed into effect through emotion” and is unlikely to stand up to legal challenge.
“People have the right to change their minds,” Work said. “And you cannot undo a child.”
During her cancer treatment, Torres learned she has genetic mutations that put her at a high risk for uterine cancer. She says her doctors are urging her to have a hysterectomy as soon as possible.
“At this point, I am questioning whether it will work out for me,” she said.
She supports the law and hopes her court case will set a precedent for future disputes, saying she is “trying to make changes for somebody else. . . . There may be hope for somebody who is younger than me.”