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In re Terrell

Court of Appeals of Arizona, First Division

June 6, 2019

In re the Matter of: JOHN JOSEPH TERRELL, Petitioner/Appellee,
v.
RUBY TORRES, Respondent/Appellant.

          Appeal from the Superior Court in Maricopa County No. FN 2016-001785 The Honorable Ronee Korbin Steiner, Judge.

          Law Office of Dennis P. Levine PC, Phoenix By Debora M. Levine Co-Counsel for Respondent/Appellant

          The Murray Law Offices PC, Scottsdale By Stanley D. Murray Co-Counsel for Respondent/Appellant

          Stoddard Law Group PC, Phoenix By Allie Stoddard Co-Counsel for Petitioner/Appellee

          Campbell Law Group PLLC, Phoenix By Claudia D. Work Co-Counsel for Petitioner/Appellee

          Sherman & Howard LLC, Phoenix By Christopher M. Jackson, pro hac vice, Matthew A. Hesketh Co-Counsel for Amicus Curiae Academy of Adoption & Assisted Reproduction Attorneys

          Daniel I. Ziskin PC, Phoenix By Daniel I. Ziskin Co-Counsel for Amicus Curiae Academy of Adoption & Assisted Reproduction Attorneys

          Judge Jennifer B. Campbell delivered the opinion of the Court, in which Judge James P. Beene joined. Presiding Judge Maria Elena Cruz dissented.

          OPINION

          CAMPBELL, JUDGE.

         ¶1 Ruby Torres and John Joseph Terrell disagree about the disposition of cryogenically preserved embryos[1] created using Torres' eggs and Terrell's sperm. The dispute arose over whether, under the terms of their in vitro fertilization agreement ("IVF Agreement"), Torres could use the embryos for implantation without Terrell's consent. The parties did not challenge the jurisdiction of the family court.[2] Following an evidentiary hearing, the court ordered the embryos to be donated to a third party for implantation. We vacate the trial court's order and hold that Torres may use the embryos to attempt to become pregnant.

         BACKGROUND

         ¶2 In June 2014, Torres was diagnosed with an aggressive form of bilateral breast cancer. Torres' oncologist explained that she would need to begin chemotherapy within a month. The oncologist advised Torres that the chemotherapy would impair her ability to become pregnant by causing her to begin menopause, after which "there [was] no guarantee that [her] body would recover . . . and come out of menopause." The next month, after meeting with Dr. Millie Behera, a fertility specialist at the Bloom Reproductive Institute (the "Fertility Clinic"), she elected to undergo IVF to produce embryos, using her own eggs and donor sperm.

         ¶3 Torres initially asked Terrell, then her boyfriend, to serve as the sperm donor, but he declined. She began the process of preserving her eggs and found another sperm donor, a prior boyfriend. Upon learning of the other volunteer donor, Terrell changed his mind and agreed to be the donor. He later testified he only did this as a favor.

         ¶4 On July 11, 2014, the parties executed the IVF Agreement, provided by the Fertility Clinic, which included terms regarding the parties' informed consent for assisted reproduction, the cryopreservation of embryos, and the disposition of any embryos that might result from the IVF procedure. The IVF Agreement specified that any embryo resulting from Torres' egg and Terrell's sperm would be their joint property.

         ¶5 The IVF Agreement also contained a provision addressing the parties' preferences regarding the disposition of embryos (the "Disposition Provision"), stating, as relevant:

10. Disposition of Embryos - Because of the possibility of you and/or your partner's separation, divorce, death or incapacitation . . . it is important to decide on the disposition of any embryos that remain in the laboratory in these situations. Since this is a rapidly evolving field, both medically and legally, the clinic cannot guarantee what the available or acceptable avenues for disposition will be at any future date.
Currently, the three alternatives are:
1. Discarding the cryopreserved embryo(s)
2. Donating the cryopreserved embryo(s) to another couple in order to attempt pregnancy.
. . .
3. Use by one partner with the contemporaneous permission of the other for that use.
This agreement provides several choices for disposition of embryos in these circumstances ([including] separation or divorce of the patient and her spouse/partner . . .). Disposition may also be controlled by the final decision of a court or other governmental authority having jurisdiction.
I/We agree that in the absence of a more recent written and witnessed consent form, Fertility Treatment Center is authorized to act on our choices indicated below (items A-H), so far as it is practical.

(Emphasis added.)

         ¶6 The Disposition Provision also contained the following general language entitled "Note":

Embryos cannot be used to produce pregnancy against the wishes of the partner. For example, in the event of a separation or divorce, 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.

(Emphasis added.)

         ¶7 The Disposition Provision then identified various options for the disposition of embryos, in differing future circumstances, such as death of one or both parties, separation, or divorce. Specifically, subsection H addressed the parties' options upon divorce or dissolution of their relationship:

H. Divorce or Dissolution of Relationship In the event the patient and her spouse are divorced or the patient and her partner dissolve their relationship, we agree that the embryos should be disposed of in the following manner (check one box only).
[1] A court decree and/or settlement agreement will be presented to the Clinic directing use to achieve a pregnancy in one of us or donation to another couple for that purpose.
[2] Destroy the embryos.

         The parties selected and initialed the first option placing the disposition decision in the hands of the court. This is the sole provision in the Disposition Provision of the Agreement between the parties and not between the clinic and the parties jointly.

         ¶8 Four days after signing the IVF Agreement, the parties married. The IVF procedure yielded seven viable embryos which were cryogenically preserved for future use. Torres subsequently underwent chemotherapy, causing her hormone levels to drop to menopausal amounts. After two years of marriage, Terrell filed a petition for dissolution of marriage. The seven embryos were still preserved and there had been no attempt at implantation. The parties could not agree on the disposition of the embryos-the primary dispute was whether the court could award Torres the embryos to achieve a pregnancy.[3]

         ¶9 At the evidentiary hearing, neither party contested that the IVF Agreement represented a valid, binding agreement regarding the disposition of the embryos. Terrell explained he elected to sign the IVF Agreement because he believed it was "honorable" to do so under the circumstances. Relying on the "Note," Terrell testified he never intended for Torres to use the embryos without his consent. He explained that when he signed the IVF Agreement, he hoped to have children with Torres "[i]f she survived," but at that time he thought her survival unlikely.

         ¶10 Terrell also claimed that he only married Torres because she needed health insurance; he went so far as to testify he would not have married her but for that need. Indeed, when asked by counsel if he would have "married [Torres] if she had not presented to [him] that she had cancer and needed [his] health insurance," he responded "[n]o."

         ¶11 Terrell did not want Torres to have the embryos because he was concerned about his "financial liability in the future, . . . as far as . . . [his] inheritance or, [an obligation to pay] child support for a child that [he] would[] never see[]." Terrell also stated concerns about the possibility of Torres "poisoning" a child against him and "painting" him as a "monster." When questioned by the court as to whether he could "co-parent" with Torres, he answered "[n]o." Torres testified that, should she conceive a child from the embryos, it would be Terrell's choice whether he wished to be involved in the child's life. Torres also testified that she would not seek child support from Terrell, and planned to implant the embryos when, and if, she remarried.

         ¶12 Torres and Dr. Behera, the fertility specialist, both testified that without the embryos, Torres would be unable to have biological children because her hormone levels were menopausal after chemotherapy. Behera testified that Torres' lab work indicated "low to no" ovarian function. Behera also testified that if Torres took medication to stimulate her ovaries "it probably would not result in any viable eggs." Agreeing that only in a "miraculous situation" Torres could achieve "a postmenopausal pregnancy," Behera testified that there was a "less than 1 percent" chance of that occurring. Behera went on to explain that the waiting list for obtaining donated embryos was long. Torres testified that although she had considered adoption, due to her cancer diagnosis and a genetic mutation "BRCA1" that increased her cancer risk, it was "unlikely" she would be considered as an adoptive placement.

         ¶13 In the decree of dissolution, the family court noted there is no Arizona case law or statutory authority addressing the disposition of embryos in a dissolution proceeding. The court analyzed out-of-state case law and identified three approaches adopted by other courts: (1) the contract approach, (2) the balancing approach, and (3) the contemporaneous mutual consent approach.

         ¶14 The trial court found that because the parties disagreed on the disposition of the embryos, and because the parties had consented to a judicial determination for disposition in the event of a dissolution, it should apply a balancing approach based on the language of the IVF Agreement. Analyzing the parties' competing interests, infra ¶ 45, the court concluded that Terrell's "right not to be compelled to be a parent outweigh[ed] [Torres'] right to procreate and desire to have a biologically related child." The trial court directed the Fertility Clinic to donate any remaining embryos to a third party or couple.

         ¶15 Torres timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") § 12-2101 (A)(1).

         DISCUSSION

         I. Overview: The Law of Other States

         ¶16 This is a case of first impression in Arizona. To begin, we must determine what law should govern the disposition of cryogenically preserved embryos created using one party's eggs and another party's sperm when the parties disagree. An overview of how other ...


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