Assisted Reproduction

An important and deeply problematic statute went effect in August 2018 regarding the award of embryos in a divorce.  A.R.S. § 25-318.03 attempts to formalize who will be awarded embryos in the event of a dispute between divorcing spouses and who will be responsible for any resulting children.  The law requires the Court to disregard any prior written agreement between spouses regarding the disposition of their embryos in the event of a divorce, agreements most often made at the time they created their embryos.  Instead, embryos are to be awarded to the spouse “who intends to allow the in vitro human embryos to develop to birth.”  The bill goes on to divest a spouse of their control of embryos if they did not provide a gamete (sperm or egg) in the creation of the embryo.  If both spouses want the embryos, the Court is directed to award the embryos, “in a manner that provides the best chance for the in vitro human embryos to develop to birth.”

Embryos have been successfully frozen and used to achieve pregnancy since the mid-1980s.  It is estimated that there are over 600,000 frozen embryos in storage in the United States alone.¹  Infertility affects millions of American.  According to the Centers for Disease Control and Prevention (CDC), 12% of women aged 15 to 44 years, regardless of marital status, experience infertility.²  Infertility is attributed equally to female factors alone, male factors alone and female and male factors combined. There are more than 12 infertility clinics in Arizona.

When a couple uses a clinic to create embryos, they are often asked to sign an extensive written agreement regarding the disposition of embryos in the event of death or divorce.  It forces couples to think carefully about scenarios in which they are no longer together and requires them to specify their wishes in writing.  Options couples consider include discarding the embryos, donating them to research or another couple, or allowing one or the other spouse to have full ownership and control.  Conscientious clinics will not proceed with the creation of embryos without such an agreement.

A.R.S. § 25-318.03 risks unwarranted governmental intrusion into the very personal and private decision of whether to have a child.  It favors the right to procreate over the right not to procreate.  A disagreement about the disposition of embryos is a conflict between two individuals, not an individual and the state.  Yet, the state will impose its choice upon a couple in conflict that has a written agreement instead of enforcing the terms of their agreement.  This approach to the disposition of embryos between divorcing spouses is counter to the majority of case law from around the country which supports enforcing a written agreement.³ As of August 2018, hundreds, if not thousands of married couples in Arizona found themselves with embryos disposition agreements that are not enforceable if a disagreement between them arises.

The law unfairly discriminates against spouses who could not provide their own gametes to create embryos by determining the disposition of the embryos based on genetic contribution.  It will have a greater impact on same-sex married couples for whom it is impossible for both spouses to have provided the gametes.  Yet, it will have no affect on unmarried couples who create embryos.  Instead, any written agreement an unmarried couple executed regarding the disposition of embryos will control.

The outcomes of this law are potentially extreme: a female spouse watches her genetic child gestated by another woman against her will; a spouse is forced to decide between parenting a child with a former spouse or facing the emotional consequences of choosing not to parent;  a spouse who was not awarded legal decision making authority for existing children is awarded the couples embryos because that was the only spouse who intended to allow the embryos to develop to birth.  None of these scenarios could possibly have been contemplated by the couple when they first sought infertility treatment in the hopes of starting a family together.

Heather M. Strickland is a Fellow of the Academy of Adoption & Assisted Reproduction Attorneys.

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¹The New York Times, “Industry’s Growth Leads to Leftover Embryos, and Painful Choices,” June 17, 2015.

²The CDC defines infertility as not being able to get pregnant after one year or longer of unprotected sex.

³E.g., Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998); Roman v. Roman, 193 S.W.3d 40 (Tex. App. 2006); In re Marriage of Dahl & Angle, 194 P.3d 834, 841 (Or. 2008).