Medical science has come a long way in the past hundred years. These changes in science bring big changes to family law. Today, many couples who have trouble getting pregnant or who want to save embryos for later choose to freeze them with fertility clinics.
Freezing embryos gives people more options to start a family. However, it can also create hard legal problems if a couple gets a divorce.
Why Embryo Custody Disputes Are Becoming More Common
There are millions of frozen embryos in the United States today. Because of this, legal fights over who owns and controls them are on the rise. Over the years, courts have handled many different cases dealing with legal rights to embryos, and the results vary widely.
Here is how judges often handle these cases:
- Preventing Pregnancy: Judges usually side with the person who does not want the frozen embryos to be used.
- Destroying or Donating: In some cases, courts order the embryos to be destroyed. In other cases, courts order the embryos to be donated to another family.
- Dividing as Property: Courts often treat frozen embryos as physical property that must be divided during a divorce. This is very similar to how courts handle disputes over pets in a divorce.
Thinking of embryos or pets as property can be difficult, but that is how many judges view them under state property laws.
Arizona Embryo Law and the Case of Ruby Torres
In 2018, Arizona passed a brand new law about disputed embryo custody. It was the first law of its kind in the United States. The law states that when a divorcing couple disagrees about frozen embryos, the court must give the embryos to the person who wants to give them a chance to be born.
This law came directly from the court case of Ruby Torres and John Joseph Terrell.
Before they got married, Torres and Terrell created seven frozen embryos. They signed a contract stating the embryos were their joint property. Later, Torres had to go through chemotherapy and radiation for cancer treatment. The treatments left her infertile.
When the couple decided to get a divorce, Torres wanted to use the embryos to have a baby. She believed they were her only chance to have biological children. Terrell disagreed. He stated that he did not want to have a child with his ex-wife.
Here is how the court handled their case:
- The first judge ruled that Terrell’s right not to be a father was more important than Torres’s wish to be a mother.
- The Court of Appeals overturned that choice and decided the embryos should be donated to a third party.
- Arizona then passed the 2018 law. The new law was not retroactive, so it could not change the outcome for Torres, but it changed the rules for future cases in Arizona.
Under the 2018 Arizona law, the parent who wants to bring the embryos to birth gets custody rights. To keep things fair, the law also says that the non-consenting ex-spouse will not be financially responsible for the child.
Even without financial responsibility, this law raises big questions. The biological parent will still know they have a child out there. What if they decide they want to be part of the child’s life later on? It also brings up hard questions about when life begins and how these decisions affect abortion rights.
The Case of Sofia Vergara and Nick Loeb
Celebrities also face legal issues with frozen embryos. Actress Sofia Vergara and her former fiancé Nick Loeb fought a legal battle over their frozen embryos that lasted nearly seven years.
In 2014, while they were engaged, the couple created frozen embryos. They broke up shortly after. Loeb wanted access to the embryos so he could bring them to birth using a surrogate, but Vergara disagreed.
In 2017, Vergara filed legal papers in California to block Loeb from using the embryos without her written permission. In March 2021, the judge ruled in favor of Vergara because of a Form Directive both parties had signed at the fertility clinic.
That form clearly stated that both people must agree in writing before anything can be done with the embryos. The judge ruled that Loeb could not use the embryos or sue on their behalf without written consent from Vergara.
Loeb tried to set up a trust for the embryos in Louisiana to give them legal status, but the court ruled that he breached the original clinic agreement.
What Should You Do to Protect Yourself?
Freezing embryos gives couples a great way to plan for the future. Even so, it can lead to serious legal disputes if a relationship ends.
If you are thinking about freezing embryos or if you are going through a divorce with embryos in storage, you should take these steps:
- Review all forms and directives you sign at your reproductive clinic.
- Put clear rules in a prenuptial or postnuptial agreement to address future property documents and marital assets.
- Speak with an experienced family law attorney to protect your rights.
Talk to a Family Law Attorney Today
Questions about child custody and property division are complex, especially when dealing with reproductive rights.
If you have questions about your rights or need guidance on asset protection in a divorce, our team at Modern Law is here to help. You can contact us directly at (480) 463-6551 or info@mymodernlaw.com to speak with our legal team.
Frequently Asked Questions
In most states, courts look at agreements signed with the fertility clinic or favor the person who does not want to become a parent. However, state laws vary. In Arizona, the court gives the embryos to the spouse who intends to allow them to develop to birth.
Under Arizona law (A.R.S. § 25-318.03), if divorcing spouses disagree over frozen embryos, the court must award them to the person who wants to give them a chance to be born.
In Arizona, if the court awards the embryos to one parent to give birth, the non-consenting ex-spouse is not legally or financially responsible for the child unless they choose to be.
Yes, clinic forms and directives often play a major role in court decisions. Judges frequently enforce written agreements signed by both parties at the clinic, as seen in high-profile celebrity cases like Sofia Vergara vs. Nick Loeb.
Couples can protect themselves by carefully reviewing all clinic directives before starting treatment and creating a clear prenuptial or postnuptial agreement that outlines what happens to stored embryos if the marriage ends.
