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Published On: Fri, Jul 3rd, 2020

Arizona Dispute Marks the Start of New Battles Over Unborn Embryos

When she froze seven embryos developed from her eggs, Ruby Torres was not thinking about setting a landmark legal precedent. She just wanted to make sure that she would be able to have children with her husband John Terrell if treatments for her cancer diagnosis destroyed her ability to reproduce naturally.

Then Terrell filed for divorce. While divorce cases involving joint property always have the potential to get messy, the conflict between Torres and Terrell took place in uncharted territory: the pair went to court to decide who was the legal owner of the seven frozen embryos.

Torres wanted to keep them, fearing they were her only remaining hope to have biological children. Terrell maintained that since both of them had donated genetic material, they both had to agree on what would happen to the embryos — and he did not give Torres his consent to gestate them, preferring that they be donated to another infertile couple.

Human embryo, 8 cells on day 3 photo: ekem, Courtesy: RWJMS IVF Program via wikimedia commons

The case ultimately worked its way to the Arizona Supreme Court, who decided that since the two could not agree, the contract they signed dictated that the embryos would be donated. The court’s ruling in Terrell v. Torres sets a precedent that is certain to have profound impacts.

John Terrell and Ruby Torres are not the only people thrust into a legal and emotional controversy by the rapid development of technology for preserving embryos. In 2019, actress Sofia Vergara won a high-profile five-year battle to prevent her ex-boyfriend Nicholas Loeb from gaining ownership of two frozen embryos they had developed together.

“Unfortunately, disputes over who ‘owns’ unused embryos after a relationship ends are becoming common throughout the country.  The laws of each state differ dramatically with regard to assisted reproductive technology, otherwise known at ART, and currently federal law does not address reproductive technology issues arising out of a separation or divorce.” said Divorce Attorney Tammy Begun. “In Maryland, for example, there is yet no comprehensive law on ART.  That is why the approach recommended by the American Bar Association’s Section of Family Law passed a Model Act governing ART is simplest.  The Model Act requires the intended parents to enter into a binding agreement prior to the creation of embryos and to determine contractually what will happen to the embryos upon divorce, death and incapacity.” 

Vergara’s situation not only pushed the issue of frozen embryo control into the public consciousness, but also revealed that America’s patchwork legal system is ill-equipped to deal with a question that seems straight out of science fiction.

Different regions of the United States are sharply polarized over whether, and at what point, fertilized eggs ought to gain human rights. The debate most often arises in the context of abortion. However, the most influential legal document in the U.S. related to abortion — the Supreme Court’s 1973 Roe v. Wade majority opinion written by Justice Harry Blackmun — skirts the question of when an embryo gains personhood. Instead, the opinion bases its argument on the mother’s right to privacy guaranteed by the Fourteenth Amendment.

Frozen embryo cases promise to open up a new front in the battle over unborn personhood — especially with an estimated 1 million embryos currently being cryogenically preserved in the United States.

Arizona responded to Terrell v. Torres with the Parental Right to Embryo Law (Arizona Code 25-318.03), signed into law by Governor Doug Ducey. The law states that in vitro embryos are the property of whichever spouse “intends to allow the in vitro human embryos to develop to birth.” If both parties in a divorce still plan to develop the embryos, the law awards them to whoever will give them the “best chance” of developing. The law does not make clear what will happen if neither party still wishes to develop the embryos.

20 week baby photo/ screenshot of YouTube video

The Parental Right to Embryo Law is the first of its kind in the U.S., and foreshadows the controversies to come. Some advocates are opposed to the law because it forces gamete donors to become parents without their consent. While the law states that non-consenting parents have no legal responsibility to the child, some still worry it establishes a precedent for favoring the rights of unborn children over those of their parents — which could become a backdoor for restricting abortion rights.

Unborn embryos occupy a unique place in the law. They exist in a grey area between citizens and property, and cases involving them often lead to unpredictable outcomes. Even judges and jurisdictions who lean more toward considering embryos to be property recognize the intense emotions they evoke in legal disputes, as the Arizona Supreme Court did in their Terrell v. Torres decision. 

Author: Sadaf Zain

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