An Arizona appellate court has ruled in a much-watched case involving a divorced couple who has been fighting over what to do with their fertilized embryos. Those embryos were produced during an in-vitro fertilization (IVF) process the couple used before they were married.
The majority of the Court of Appeals overturned a lower court ruling in favor of the ex-husband. They determined that the woman could implant those embryos if and when she chooses to, and her former husband doesn’t have a say in the matter.
The woman was undergoing chemotherapy for breast cancer when she decided to undergo IVF because of the potential impact of her treatment on her ability to get pregnant. Her then-boyfriend, whom she later married, was the sperm donor. (Interestingly, he wasn’t her first choice.) The agreement they signed at the time stated that if the couple separated or divorced, the embryos could only be used with the “express, written consent” of both of them.
The ruling follows the enactment of a new state law that was an outgrowth of this case. Under the new law, judges have to give custody of viable embryos to whichever partner wishes for them to develop into babies — regardless of what agreement the couple may have reached earlier. However, the appeals court noted that its decision didn’t take this law into consideration since it was passed after this case began.
One of the dissenting judges noted that the decision interferes with the contract the two signed. She also noted that just as people have a right to procreate, they also have a right not to procreate.
The ex-husband’s attorney says he is “weighing his options” regarding whether to take the case to the Arizona Supreme Court.
If you’re considering creating and freezing embryos, it’s essential to understand the current state law on the subject. It’s also wise to consult with a family law attorney before signing any agreement.