06 Apr 2018 New Embryo Custody Law Strips Arizonans of Reproductive Rights

Arizona legislators just passed, and GOP Governor Doug Ducey signed into law, SB 1397, an onerous new law with potentially disastrous impacts on the lives of intended parents; on the fields of family, divorce and ART law; and on the cause of reproductive freedom in general.

Under the measure, in divorce cases in which there are cryopreserved embryos—created by the couple in better times— “the Court shall” “award the in vitro human embryos to the spouse who intends to allow the in vitro human embryos to develop to birth.” Even if a divorcing couple has a legal agreement governing how unused embryos would be handled in the event of separation or divorce—a requirement at most fertility clinics—“the court shall award the in vitro human embryos as prescribed.” In other words, the new law effectively renders any existing disposition agreement null and void. It is a shocking, and possibly unconstitutional, infringement on a person’s right NOT to procreate.

Presented by its proponents as a simple clarification of divorce statutes to address the increasingly common scenario of cryopreserved embryos as marital property, the new law is in fact an end-around aimed at establishing legislatively the “personhood” of unborn embryos, a plank in a long-running anti-choice movement platform.

Disputes over the disposition of unused embryos have become increasingly common as use of assisted reproductive technology has increased and success rates have climbed. In vitro fertilization often produces multiple viable embryos; however, best practices limit the number of embryos implanted in one cycle. In the early years of IVF, it was common to create as many embryos as possible and then implant multiple embryos in order to improve the chances of a successful pregnancy.

As the technology advanced fertility experts got better at producing viable embryos with in vitro fertilization and at the same time, pregnancy success rates climbed. Eventually, medical providers established a standard of limiting the number of embryos implanted at one time to one or two. . As a result, intended parents, even after one or more successful births, might be left with a handful of potentially viable embryos… or 20. Now, imagine you are divorced and faced with the prospect of becoming a biological parent against your will, not just once but, potentially, many times.

While it absolves the unwilling parent of financial responsibility, the new Arizona law brushes off such concerns of coerced parentage with a legal remedy that does nothing to mitigate the ghoulish prospect of having multiple biological children born into a family of which you are not a part.

In the language of the bill, “the spouse that is not awarded the in vitro human embryos has no parental responsibilities and no right, obligation or interest with respect to any child resulting from the disputed in vitro human embryos” unless he or she “consents in writing to be a parent.” Further, “if the spouse who is not awarded [the embryos] does not consent to being a parent… any resulting child from the disputed in vitro human embryos is not a child of the spouse and has no right, obligation or interest with respect to the spouse.”

In cases in which both divorcing spouses intend to allow the preserved embryos to “develop to birth,” but only one spouse is genetically related to the embryos, the law requires the court to award custody to the genetically related parent.

The law further requires a spouse who is genetically related to the embryos, but who does not consent to be a parent, to provide the custodial spouse with “detailed written nonidentifying information that includes the health and genetic history of the spouse and the spouse’s family”— helpful for the child, yet it is another onerous, open-ended burden to place on someone who has already been stripped of his or her right not to become a parent. 

Impact of Torres v Terrell

The new law gained traction in Arizona in the wake of an infamous recent court case in which an Arizona cancer patient, Ruby Torres, petitioned to use cryopreserved embryos against the wishes of her ex-husband. In 2014, the couple, then engaged, created seven embryos via IVF—both contributing gametes—prior to Torres’ treatment for breast cancer. The couple signed a medical agreement at the time of treatment covering how any remaining embryos would be handled in the event of their separation.

They subsequently married but later divorced. Torres sued for possession of the embryos, claiming they represented her only opportunity to have biologically related children. But her ex-husband objected, citing his unwillingness to be financially responsible for resulting offspring. An Arizona family court judge ruled in the ex-husband’s favor, based on the medical agreement signed by both intended parents, and ordered that the embryos be donated to a fertility bank or another couple. The case received extensive media coverage and became a cause célèbre for anti-choice organizations, including the powerful Center for Arizona Policy, an offshoot of the right-wing Family Research Council, and conservative politicians.

SB 1393 sponsor State Senator Nancy Barto (R-Phoenix), who has carried a number of anti-choice bills, acknowledged the influence of the Torres case. According to the Arizona Daily Sun, “Barto said while the outcome of SB 1393 can't legally affect the outcome of that case, she is hoping that the courts see the measure as the intent of the Legislature. And, if nothing else, she said, it will provide direction to judges on how to handle future incidents.” The law may impact the outcome of Torres’ future appeals, which are ongoing.

Under this new law, any Arizonans who have frozen stored embryos now live with the reality that, should they end up in divorce court, they may be forced to become biological parents against their will. In effect, their reproductive rights are subject to the wishes of their ex, for better or worse.

All other considerations aside, the enormous implications of government-mandated procreation should make intended parents consider their decisions about cryopreservation even more carefully.

ART professional and consumer advocacy groups opposed the Arizona bill, depicting the potential nightmare scenarios ensuing from the new law: Ex-husbands and -wives faced with the prospect of seeing multiple genetically related children grow up in another family. Domestic abusers awarded custody of embryos genetically related to their victims. The new law would strip courts of all discretion, requiring them to adhere to guidelines with no consideration of a custodial spouse’s fitness as parent. In its letter to Governor Ducey, RESOLVE: The Nationality Infertility Association wrote, “These unhappy scenarios are the end product when the government tries to impose an iron-clad rule on a situation that is complex and deeply personal. Courts can and have analyzed frozen embryo disputes with the delicacy they require. The rule proposed in SB 1393 will cause unnecessary difficulties for people with infertility, for families, and for children.”

To sum up, SB 1393 is a terrible law, a textbook case of government oppression and a frontal attack on reproductive freedom and personal choice. If we were to remove the use of assisted reproduction from this scenario, it would be equivalent to forcing a woman to bear a child for her ex-husband against her will, simply because her ex-husband expressed his intent to have a child with her. Ridiculous!

The late Dr. Martin Luther King Jr. once said, “The arc of the moral universe is long, but it bends toward justice”—NOT toward the loss of civil liberties and forced procreation represented by this destructive legislation. I predict the law will ultimately be overturned—if Arizona lawmakers cannot see the light, the courts will. Until then, Arizona’s new embryo custody law will be a dark, dark blight on this country’s greatness—and a wake-up call to remain vigilant against other constitutional impingements, in Arizona or in other states.