Arizona Woman Prevails in Quest to Keep Embryos

(CN) – An Arizona woman can keep the embryos created by her and her then-boyfriend, a state appeals court ruled, finding her interest in the embryos outweighs the ex’s since he said he only donated his sperm “as a favor.”

In June 2014, Phoenix-based lawyer Ruby Torres was diagnosed with breast cancer and was told chemotherapy would hurt her ability to become pregnant. Torres opted for in vitro fertilization and asked her then-boyfriend John Terrell to donate his sperm.

Terrell declined but changed his mind after Torres’ previous boyfriend volunteered to donate his sperm. The couple signed an IVF agreement with the fertility clinic that said any embryos created by them would be their joint property. Under a clause in the contract, if the two did not use the embryos to become pregnant, either one of them could use the embryos with the permission of the other or the embryos could go to a third party.

After signing the contract, the couple married. They divorced in 2016, however, and during divorce proceedings Terrell said he wanted the seven embryos destroyed while Torres fought to keep them.

The family court found that because the two disagreed on what to do with the embryos, the fertility clinic must donate the embryos to a third party. Torres appealed, and on Thursday a three-judge panel of the Arizona Court of Appeals vacated the family court’s order in a 21-page opinion.

Noting the couple’s IVF contract gave the court the authority to either award the embryos to one of them or to a third party in the event of divorce, Judge Jennifer Campbell wrote for the majority that balancing the parties’ wishes was necessary.

While Terrell had testified he “never intended on having children” if he and Torres were not together, Campbell said the sole purpose of Torres undergoing the IVF process was to preserve her ability to have children.

“With this information, Torres located a donor who was prepared to assist in the creation of fertilized eggs. It was only after hearing about the other donor that Terrell agreed to provide his gametes,” Campbell wrote for the majority. “Although the trial court found that Torres had less than a one percent chance of having biological children through normal means of pregnancy, and that she had gone through great pains to preserve a method by which she could have biological children, the court nevertheless appeared to conclude that the mere possibility that Torres could conceive and bear a biological child after her cancer treatment tipped the balance against Torres’ claims to the embryos.”

So while the family court put too little weight on Torres’ desire to have a biological child – and the lengths she went to make sure it could happen immediately after her cancer diagnosis – it gave too much credence to Terrell’s statement that he did not want children with Torres with the marriage failed.

“Even though Terrell doubted Torres would survive the cancer when he entered into the IVF agreement,

his doubts that Torres would live long enough to use the embryos in the future does not relieve him of his obligations under the contract,” Campbell wrote. “Torres and Terrell sought to jointly preserve Torres’ fertility, and not simply to have a child within a marriage, or even within a relationship.”

Campbell added: “The majority finds Torres’ interests in the embryos – especially given that she gave up the opportunity to use another donor and she is likely unable to become a parent (biological or otherwise) through other means – outweighs Terrell’s interest in avoiding procreation. We therefore vacate the trial court’s order and remand to the trial court to enter an order awarding Torres the embryos.”

Judge James P. Beene joined Campbell’s opinion. But in a dissent, Judge Maria Elena Cruz said the bottom line is the contract and what the couple spelled out at the time is how the embryos should be handled.

“In other words, the majority concludes that when called upon to decide a question that the parties have addressed in the agreement, the court is not governed by that agreement,” Cruz wrote.

“If the parties intended to grant a court the power to determine who should receive the embryos upon their divorce, unconstrained by the other terms of their agreement, the IVF agreement would have said so explicitly,” she added.

Torres’ attorney Stanley Murray said he was pleased with the outcome. He also noted Arizona law now gives embryos to the party that wants them.

Terrell's attorneys did not return phone messages seeking comment.

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