Arizona woman can use fertilized embryos to get pregnant without ex's consent, court rules

A Phoenix woman can try to get pregnant using fertilized embryos without the consent of her ex-husband, who would become a father, the Arizona Court of Appeals ruled.

In a 2-1 decision, the court found that Ruby Torres' right to procreate outweighs her ex-husband John Terrell's interest not to — a decision that leaned heavily on the couple's reasoning for preserving the embryos.

The court acknowledged its decision could make Terrell financially responsible for the child.

Torres, who is now 38, and Terrell preserved embryos in 2014 after she was diagnosed with bilateral breast cancer and an oncologist said she likely couldn't bear children after chemotherapy.

The couple, who was dating at the time, agreed to preserve her embryos so she could get pregnant if she survived cancer. They married and later divorced.

Torres, an attorney, testified that she wants to implant the embryos when, and if, she is remarried.

During their divorce, Terrell asked the Maricopa County Superior Court to prevent Torres from becoming pregnant with the embryos. The court ruled that the embryos must be donated to a third party.

But the appeals court overturned that ruling in a decision handed down March 14.

"The trial court erred when it placed heavy weight on the parties’ inability to 'co-parent,'" wrote Judge Jennifer B. Campbell. "Nothing in the record suggests that either of them expected or intended to co-parent any offspring derived from the embryos."

She wrote that the couple agreed to preserve embryos to protect Torres' fertility, not necessarily to have children together in the future.

According to court documents, Terrell originally declined when Torres asked him to donate sperm to fertilize her eggs. He changed his mind after she planned to use a prior boyfriend's sperm.

Terrell could appeal the decision to the Arizona Supreme Court. His attorney didn't respond to a request for comment.

Judge Maria Elena Cruz wrote the dissenting opinion. She emphasized that the couple signed a contract in 2014 agreeing to not use the embryos without mutual consent.

The agreement, signed at a fertility clinic, states that in the case of divorce or separation the embryos "cannot be used to create a pregnancy without the express, written consent of both parties, even if donor gametes were used to create the embryos."

Cruz criticized the majority of the court's ruling, stating it was explicitly prohibited by the contract. She said the lower court's decision should have been affirmed.

"Do contracts matter?" she wrote. "I believe they do."

Case generated new Arizona law 

The case might seem like a unique circumstance, but Arizona legislators took up the debate last year and passed a law motivated by Torres' case.

State law now requires that viable embryos from a divorced couple be awarded to the parent who will allow a child to be born. It also states the other parent has no rights or obligations.

Campbell wrote that the law wasn't a factor in the ruling because it didn't exist at the time of the trial court decision.

And because that state law isn't applicable in this case, Terrell could end up having to pay child support if Torres gives birth to a child. Torres testified that Terrell could decide if he wants to be involved in the child's life.

"It is, of course, true that if Torres were awarded the embryos, Terrell could be legally responsible to financially support the children," the ruling states. "That reality is the same today as it was when the parties executed the (in vitro fertilization) agreement nearly four years ago."

Reach the reporter at dustin.gardiner@arizonarepublic.com or 602-444-2471. Follow him on Twitter: @dustingardiner.