from the Superior Court in Maricopa County No. FN 2016-001785
The Honorable Ronee Korbin Steiner, Judge.
Office of Dennis P. Levine PC, Phoenix By Debora M. Levine
Co-Counsel for Respondent/Appellant
Murray Law Offices PC, Scottsdale By Stanley D. Murray
Co-Counsel for Respondent/Appellant
Stoddard Law Group PC, Phoenix By Allie Stoddard Co-Counsel
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
I. Ziskin PC, Phoenix By Daniel I. Ziskin Co-Counsel for
Amicus Curiae Academy of Adoption & Assisted Reproduction
Jennifer B. Campbell delivered the opinion of the Court, in
which Judge James P. Beene joined. Presiding Judge Maria
Elena Cruz dissented.
Ruby Torres and John Joseph Terrell disagree about the
disposition of cryogenically preserved embryos 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. 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
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.
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.
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.
The IVF Agreement also contained a provision addressing the
parties' preferences regarding the disposition of embryos
(the "Disposition Provision"), stating, as
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
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.
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
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
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).
 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.
 Destroy the embryos.
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
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.
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.
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."
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.
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.
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.
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.
Torres timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes ("A.R.S.") § 12-2101
Overview: The Law of Other States
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 ...