Breeding Ground for Controversy

Infertility issues can be a real struggle for many families. Thankfully, with the advances we have in medicine, couples that wouldn’t have been able to have children 50 years ago can today. I know that I have modern medicine to thank for my beautiful niece.

Unfortunately, some couples struggle with infertility because of cancer treatments. Chemo- and radiation therapy can negatively impact reproduction, so many couples look to freezing embryos prior to one of them receiving such treatment.

Ruby Torres and John Joseph Terrell are one such couple. They got married shortly after Torres was diagnosed with cancer in 2014. The Arizona couple then underwent in vitro fertilization, fertilizing Torres’ eggs with Torrell’s sperm. Their viable embryos were frozen and stored away. Looking back, she was relieved, because after receiving chemotherapy for her cancer, she suffered a “significant drop in her reproductive function.”

Unfortunately, before they ever implanted the embryos, Torres and Terrell divorced in 2014. Like most divorcing couples, they had to head to court to divide up their assets, but things got much more involved when it came time to divide up the embryos.

Torres wanted to keep the embryos. Terrell, on the other hand, doesn’t want to father any children with his ex-wife, so he wants the embryos to be donated. Instead of just having to pick between two opposing views, the judge had additional information to help with the decision. When the couple underwent the in vitro fertilization, they signed an agreement at the fertility clinic that said if they split up, the embryos could either be donated to another couple or used by one of them to have children – but only with the “express, written consent of both parties.”

Based on this agreement, the judge in the family court ruled in Terrell’s favor, saying his “right to not be compelled to be a parent outweighs (Torres’) right to procreate and desire to have a biologically related child.”

Torres appealed, and the appellate court overturned the family court’s decision and ruled in her favor. Terrell then appealed to the Arizona Supreme Court, which last month decided in his favor.

In its ruling, the Court relied on the verbiage of the contract and the condition that said the embryos “cannot be used to produce pregnancy against the wishes of the partner.” While the Court said it was “cognizant of the unavoidable emotional fallout” that would come from the decision, because the couple couldn’t come to an agreement, according to the contract, “the court could only direct donation of the embryos.”

These are extremely difficult and emotional issues,” Terrell’s attorney, Eric M. Fraser, told CNN. So like Torres and Terrell and their contract, he believes “it’s best for couples to make decisions ahead of time.” Fraser added, “The Arizona Supreme Court enforced their contract, which gives much-needed certainty to other couples around the state that courts will respect the decisions they make.”

So just like a prenuptial agreement, a contract that addresses what happens to a couple’s embryos if they break up is a tough subject to broach. But as Fraser pointed out, you want to do such an agreement when you have a level head, as opposed to being in the midst of an emotional and stressful breakup.

Infertility is apparently hereditary. If your parents didn’t have any children, it’s unlikely you will either.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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