What Happens to Cryogenically Preserved Embryos When Partners Split Up?

Science and technology are creating new problems for divorcing and separating couples across the country. More specifically, the debate surrounding what happens to cryogenically preserved embryos and what happens to them after a couple separates is a particularly hot topic.  

How This Issue Comes To Be

A typical case is where a woman finds out she has a severe illness such as cancer, and her and her partner decide to harvest her eggs and fertilize them in case the treatment prevents pregnancy, later on, saving the embryos. She makes it through treatment but finds that she is now unable to conceive naturally.  Then, her and her husband divorce or separate, but she decides she still wants to use the embryos to try to have children. When this happens, many questions arise about the legal and ethical implications of the issue:

• Can she do so without the consent of the former husband or significant other?
• What if there is a prior agreement requiring consent?
• What if the former husband or significant other refuses, does she have any other recourse?
• Is the husband or significant other required to pay or contribute to the birthing expenses of his child?
• Is the former husband or significant other required to pay child support?
• Does the former husband or significant other lose parental rights a father would normally have if he does not consent?
• Regardless of consent, can the father compel parenting time or legal decision making over the child?

How Courts Address This Issue

States have dealt with this by legislative action, statutes. They have tried to resolve this through rulings in court cases.  They have also used a combination of statutes and court rulings.

Arizona has both a statute and a court case that attempt to address these issues.  The statute Arizona Revised Statute § 25-318.03 states that assuming both spouses contributed gametes (sperm or egg) to the embryo, the one who wants “to allow the in vitro human embryos to develop to birth” is awarded the embryo and if it happens the resulting child.  If there is any resulting child and one parent does not want it, the child “is not a child of the spouse and has no right, obligation or interest with respect to the spouse.” However, that spouse must provide “detailed written non identifying information that includes the health and genetic history of the spouse and the spouse’s family….”  

The Arizona Court of Appeals, Division One, decided a case on these issues that came about prior to the statute.  This means that the statute did not require the court to apply the new law to the pre-existing situation. The case was Terrell v. Torres, No. 1 CA-CV 17-0617 FC, Arizona Court of Appeals, Division One (March 14, 2019).  The parties had signed an agreement when the embryos were created by in vitro fertilization, which said that if they divorced the embryos would not be implanted into wife without the consent of both parties, further if the parties did not both consent for the embryos to be implanted in wife, the court would decide if either party got the embryos or if they would be given to another couple or if the embryos would be destroyed.  As they divorced, the wife wanted to implant the embryos and the husband did not. The divorce trial court ordered the embryos, pursuant to the agreement, be given to another couple for their own implantation.

This is called the contract approach, which is followed in some states.  The Court of Appeals by a two to one majority held that the contract was ambiguous and that the court should balance the interests of both parties and in doing so decided the wife should get the embryos.  The court decided that the husband’s right not to have children was outweighed by the wife’s right to have children. Furthermore, the court asserted that the husband could be financially obligated to the children, but did not address parenting time or decision-making.

Other states have come down on several different sides of these issues.  A careful examination of the laws of the state you are in when you decide to have in vitro fertilization or the state in which you get divorced will most likely determine the outcome of a case with these issues.  Speak to a lawyer in those states prior to signing an agreement. If you have questions, Vaughan S. Winborne will be happy to schedule a consultation (928) 707-0381.