Arizona Court Awards Embryos to Ex-Wife and Other Cases

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Arizona Intermediate Appellate Court Reverses Lower Court, Awards Embryos to Ex-Wife

Faced with a divorcing couple who could not agree on the disposition of their seven frozen embryos and what it ruled was an unclear clinic disposition agreement (“the IVF agreement”), an intermediate Arizona appellate court has reversed a lower court and awarded the embryos to the ex-wife, Ruby Torres. Two years after creating the embryos, the husband, John Terrell, filed for divorce, and the wife had sought the embryos for future implantation. The trial court had found the couple’s dispositional choice clear (use only with contemporaneous mutual consent) and disallowed their use in accordance with the agreement and balancing the couple’s respective procreative rights. In reversing, the court rejected the agreement, applied a balancing test, and ruled the interests of the wife, who was a cancer survivor, outweighed her former husband’s interests in avoiding procreation. A strong dissent to the opinion was filed. Terrell has until May to file a further appeal to Arizona’s highest court for a final ruling, which is widely expected.

While likely not a final ruling, a few of the facts make the case particularly notable. The couple were not married at the time of the woman’s breast cancer diagnosis and, after Terrell initially refused, Torres had selected a former boyfriend as a sperm donor. The couple married days after signing the clinic documents and Terrell testified they married only because Torres needed health insurance. The appellate court explicitly addressed both Torres’s onco-fertility status and her options to freeze eggs, or embryos with Terrell or with donor sperm, an analysis that could have implications for fertility preservation counseling and options:

“…[I]t is undisputed that the sole purpose of the IVF process was for Torres to preserve her ability to have biological offspring… Following her doctor’s advice and expertise, Torres elected to preserve embryos, increasing her chances of successful procreation. As explained by Dr. Behera, the most stable preservation method to ensure successful reproduction in the future was to freeze fertilized eggs, or embryos. With this information, Torres located a donor… The trial court determined that the parties’ decision to use IVF—as opposed to freezing ‘just’ Torres’ eggs—weighed against her. As the court explained, had she frozen just her eggs, ‘there would be no further dispute, as [Torres’] eggs would be her sole property and it would not involve the potential of [Terrell] becoming a father against his wishes.’ This was also error. Not only was Torres’ decision to freeze embryos medically supported, the court also heard uncontested testimony that Torres gave up a ready and willing alternate gamete donor. Without Terrell’s intervention, Torres would likely have viable cryogenically preserved embryos ready for implantation, as she planned.”

The intermediate court noted both parties agreed the contract was enforceable, but found the issue was whether it adequately addressed the issue at hand. The couple’s signed IVF agreement with the fertility clinic specified that any resulting embryos would be their joint property, and they’d elected the option to only use their embryos for procreation with mutual contemporaneous consent. Further, a “Note” section seemingly reinforced that choice. The court, however, focused on a separate provision (“Section H”) in the agreement which required that in the event of a divorce, “[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.” Rather than considering this was a provision to ensure the clinic had clear instructions, the court ruled there were inconsistent contract provisions that invalidated the couple’s choices and thus required it to employ a balancing test instead. The court held the embryos should be awarded to Torres as she has no “reasonable possibility” (Davis) of becoming a parent through other means.

In considering the issue, the Court of Appeals reviewed the law of other States to conclude that it would adopt a contract approach and only if the contract was inadequate, would it apply a balancing approach. The court noted the new Arizona statute passed during the pendency of the hearing, requiring the court to award the embryos to the spouse who wants to use them for procreation (A.R.S. § 25-318.03), did not apply at the time of trial, nor to unmarried couples.

The court rejected arguments raised by the trial court concerning the financial burden and fear of co-parenting that Terrell would endure if the embryos were awarded to Torres. The court also disagreed with the trial court’s reliance on Terrell’s “constitutional right to procreational autonomy,” ruling instead that by signing a contract that empowered the court to decide the disposition of any embryo in case of a dispute, Terrell had waived his right not to procreate.

In a strongly worded dissenting opinion, Judge Cruz argued the majority incorrectly interpreted the IVF Agreement and disregarded an entire clause, “the Note,” which specifically gives a court instruction on how to dispose of embryos according to the parties’ selection and instead chose to disregard it in favor of a balancing approach. According to the dissenting view, awarding the embryos to Torres was explicitly prohibited by the IVF agreement that required an “express written consent of both parties.”

The case is likely to be ultimately decided by the Arizona Supreme Court.
Terrell v. Torres, 2019 WL 1187283 (Ariz. App. Div. 1, 2019)

Woman Sues Hospital after Discovering it Stored her Embryo for 13 Years

A Massachusetts woman has filed a federal lawsuit against Women & Infants Hospital in Providence, Rhode Island, claiming the hospital kept one of her embryos in storage for 13 years without her knowledge.

In 2004, after having her first child, Marisa Cloutier-Bristol underwent IVF treatment at Women & Infants Hospital. She was told the IVF treatment resulted in four embryos that were abnormal and could not lead to a pregnancy. No consent form or other document was signed regarding how to dispose of the embryos. After the death of her first husband, she came back in 2006 to try IVF again with her new husband. The hospital did not mention any frozen embryos remaining from the 2004 IVF round. According to the complaint, at that point, the hospital had storage documents, and a policy of charging $500 per year after the first year of storage, a document she and her second husband signed. The IVF was again unsuccessful. Thirteen years later, in 2017, she received a letter from the hospital asking her to pay $500 for the storage of her embryo. After accessing her medical record, she discovered she had one remaining frozen embryo from her first round of IVF in 2004.

In January 2019, Cloutier-Bristol filed a federal lawsuit, claiming breach of informed consent, breach of contract, professional negligence, negligent infliction of emotional distress and other vicarious liability claims. Her attorneys argue she would have attempted a pregnancy with the embryo, but that with her husband deceased, she cannot morally take that route. She has asked that the embryo be “frozen for eternity”.

Both this and the Torres case above are reminders of the importance of clear, written dispositional instructions between a fertility clinic and patients regarding any cryopreserved embryos.
https://www.providencejournal.com/news/20190317/mass-woman-sues-women-amp-infants-hospital-over-13-year-delay-in-disclosing-frozen-embryo; USDC MA (case 1:19-cv-10179-PBS; filed 1/28/19)

Alabama Judge Allows Wrongful Death Case to be Filed on Behalf of an “Aborted Fetus”

In Madison County, Alabama, a probate judge has allowing a “would-be” father, 19-year-old Ryan Magers, to sue on behalf of his former 16-year-old girlfriend’s aborted fetus.

In February 2017, Magers’ girlfriend was six weeks pregnant and had a medically induced abortion against his wishes, after being provided a legal abortion pill prescribed by the Alabama Women’s Center for Reproductive Alternatives in Huntsville. Her decision was made in consultation with her family, who supported her decision. Two years later, in February 2019, Magers brought a “wrongful death” lawsuit on behalf of the aborted fetus against the Alabama Women’s Center for Reproductive Alternatives, its employees and the manufacturer of the abortion pill, which the case describes as “a pill designed to kill unborn children.” He is now the legal representative of “Baby Roe,” in reference to the landmark decision of Roe v. Wade (410 U.S. 113 (1973)).

The case was filed four months after enactment of Alabama’s “personhood law,” which amended the State constitution to recognize “the sanctity of unborn life and the rights of unborn children, including the right to life” (Alabama Amendment 2, State Abortion Policy Amendment (2018)). The case is certain to be closely watched by anti-abortion and abortion rights activists.
https://www.washingtonpost.com/health/2019/03/06/alabama-judge-allows-man-sue-clinic-behalf-aborted-fetus/?noredirect=on&utm_term=.6ebf358f6959

The U.S. Supreme Court Rejects Review of Colorado Frozen Embryo Case

A woman who lost a court case to her former spouse in Colorado, has now lost in her efforts to obtain discretionary review from the U.S. Supreme Court. In its October 2018 ruling, the Colorado Supreme Court adopted a balancing test for divorcing couple’s embryos in the absence of a prior agreement. That court reversed a lower court ruling which had awarded the embryos to the ex-wife with instructions to apply the new balancing framework. The ex-wife’s attorneys argued in their petition to the Supreme Court that, “science is firm on when a person comes into being,” and that the Supreme Court “must decide the most basic human question – Is a human embryo a person or property?” on a national Constitutional level.

Without a right of appeal, the U.S. Supreme Court can accept or deny appeals, which are made in the form of a petition for writ of certiorari. On April 1, 2019, the U.S. Supreme Court denied the ex-wife’s petition for writ of certiorari which should end the litigation.
Rooks v. Rooks, 2019 WL 331041 (U.S.,2019)

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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