Arizona Supreme Court Settles Embryo Debate

February 12, 2020

The Arizona Supreme Court, which has been a hotbed for reproductive technology debates, decided in late January that a “woman cannot use frozen embryos fertilized by her ex-husband to have children.”

Case Background: Terrell v. Torres

This case came about when an Arizona woman, Ruby Torres, fertilized her eggs before undergoing cancer treatments that would reduce her reproductive abilities. Torres’ eggs were fertilized by her then-boyfriend, John Terrell. Before the fertilization, Torres and Terrell entered into an agreement, the crux of the litigation, at the fertility clinic. One part of the agreement stated that neither Torres nor Terrell could use the embryo without consent from the other. Another part of the form stated that “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 on box only).” The options for disposal included (1) donation to another couple or (2) “[a] court decree and/or settlement agreement will be presented to the Clinic directing use to achieve a pregnancy in one of us.”

After fertilization, Torres and Terrell were married. Three years later, the couple divorced and the tumultuous court battle began. Terrell wanted the embryos donated because he did not want to father any children with his ex-wife. However, Torres wanted to keep the embryos as she intended to use them if she ever remarried. She promised Terrell she would not seek child support and Terrell could be as involved or uninvolved as wanted. However, Terrell asked the courts to intervene.

Procedural History

The embryo agreement caused confusion and was interpreted differently at each stage of litigation, leading the case up the Arizona Supreme Court. Terrell initially won at the family court level, with the judge ruling Terrell has a “right to not be compelled to be a parent,” which outweighed Torres’ “right  to procreate and desire to have a biologically related child.” However, Terrell’s victory was short lived as the appellate court overturned the decision and found in favor of Torres. The Court of Appeals reasoned the agreement allowed the courts to decide who should get the embryos, regardless of the other party’s wishes. The case was appealed to the Supreme Court. 

The Arizona Supreme Court’s Decision

The Arizona Supreme Court reversed the Court of Appeal’s decision and found in favor of Terrell. The Court interpreted the agreement as pathing two paths. Either (1) the couple could come to an agreement on how the embryos would be used or disposed of or (2) the embryos would be donated to another couple. Because the couple could not come to an agreement, option two, donation, would be required. As a result, the Supreme Court ruled the embryos must be donated.

Terrell v. Torres led to a new Arizona statute that states a judge in a divorce case where “cryopreserved embryos” are at issue, must “award the embryos to the party most likely to ‘bring them to birth,’ regardless of what the couple may have agreed to when going through IVF together.” 


Arizona’s decision breaks with the general trend in frozen embryo litigation. Judges generally, though not exclusively, rule in favor of the party that does not want the embryos used. These cases follow the theory that “no one should be forced to become a parent.” Further, Arizona’s statute inspired by the case, is the first legislation of its kind, bearing significant public policy concerns.

The legislation springing from the Torres case could “dramatically alter the practice of fertility medicine, as well as the debate over when life begins.” Conservative groups are already fueled by this debate arguing the frozen embryos should be given their own rights as they are not just tissues over which ownership rights may be exercised. Antiabortion groups, like the Thomas More Society, are urging judges in cases like Torres to consider the embryos as “children” and decide cases in the embryo’s best interest. 

If these antiabortion groups succeed in asserting embryo’s rights, it could upend the right to an abortion. Chair of the American Bar Association’s committee on fertility technology, Rich Vaughn, said of Arizona’s new legislation, “The new law is in fact an end around aimed at establishing the ‘personhood’ of unborn embryos,” a major goal for antiabortion groups. Cases like Torres have been addressed in jurisdictions around the country and similar litigation is currently pending. Already decided cases have gone different ways. Illinois and Pennsylvania have awarded embryos to women unable to reproduce otherwise. Other courts have ruled that the embryos be donated to research or remain frozen until the parties come to a mutual agreement. The conflicting rules have led many to believe the US Supreme Court will soon have to answer the question of what to do with frozen embryos, which will have significant repercussions in the already contentious abortion debates.

Madeline A. Labovitz