modern problems

Arizona Supreme Court justly rules divorced woman can’t use her frozen embryos…

Ruby Torres, 39, had always dreamt of being a mother. But in 2014, when she suffered an aggressive form of breast cancer, she was told that chemotherapy would eventually render her infertile. At that point, she knew the only way she would ever be able to get pregnant was by freezing her eggs and undergoing in-vitro fertilization.

John Terrell, Torres’ boyfriend at the time, initially declined to donate sperm, but eventually agreed. The couple signed a legal agreement stipulating that neither party would use the embryos to create a pregnancy without the express, written consent of both parties. Torres and Terrell married days after signing the agreement and immediately started IVF, resulting in seven viable embryos. But then they divorced in 2017, after just three years of marriage.

During the divorce proceedings, John Terrell asked the Maricopa County Superior Court to prevent Torres from having the embryos implanted. He stated that he no longer wanted to father children with Torres, and did not want to be financially responsible for children with her. The court initially sided with Terrell, and the embryos were ordered to be donated. Torres appealed, and the Arizona Court of Appeals sided with her, “ruling that Torres’ rights to have children prevailed over her ex-husband’s objections to becoming a parent.” Terrell did not accept that outcome and also appealed.

The couple continued to fight in court until a new law was made in 2018, allowing former spouses to use frozen embryos against their former partner’s wishes, but relieving the ex-spouse of parental responsibilities like paying child support. However, because this case predated the 2018 era law, the new law can’t be applied to Torres and Terrell. And they have finally reached the Arizona Supreme Court, which has sided with John Terrell and ruled that Ms. Torres does not have the right to use her frozen embryos after all. The embryos can now either be donated to another couple or destroyed.

Let me first state that I have empathy for Ruby Torres’ situation. Not knowing anything at all about the people involved in this case, I can definitely see how this would be a heartbreaking outcome for Ms. Torres. However, having been married to a man whose ex wife has “issues”, to say the very least, I can also see John Terrell’s side. If the situation were reversed, and Mr. Terrell wanted to implant the embryos into another woman, there would likely be much outrage among the masses. Moreover, there could be a very good reason why Terrell doesn’t want to father children with his ex wife. It may not be entirely about finances, either. Given that the two were only married for three years before they split, I wonder if maybe one, or even both of them, doesn’t have significant issues. I’m not saying they definitely do have issues— only that such a short marriage makes me wonder about the stability of one or both of them.

Ms. Torres has stated that she plans to remarry and would have her new husband adopt any children resulting from the embryos. She claims she would not have required any financial support from Mr. Terrell. However, making such a statement and actually adhering to it are two different things. Even if Ms. Torres is committed to having her new partner adopt any children resulting from the frozen embryos, when it comes down to it, the new partner also has to agree. Until he signs the dotted line accepting responsibility, it’s not a done deal. Not knowing any of the parties involved in this case, but having seen my husband’s ex wife promise things and then renege, I can see why Mr. Terrell didn’t want to take the risk. It sounds like their split was not amicable, which in and of itself could present serious problems.

A lot of people might wonder why Mr. Terrell would even care about what happened to the embryos if another man was willing to adopt any live children resulting from them. Personally, I can kind of see why Terrell wouldn’t want his ex raising his biological offspring. Think about this. At the very least, Mr. Terrell would have to live with the knowledge that some of his DNA resulted in a son or daughter who was being raised by an ex spouse with someone else. I think it would probably bother me to know that some other woman was raising any child of mine, with my DNA, against my wishes, whether or not I knew her. I don’t think I would ever be able to give up a child for adoption. Maybe Mr. Terrell feels the same way, or perhaps, for whatever reason, Terrell specifically doesn’t want his ex wife raising his child, even if he’s okay with strangers parenting his offspring. Since they had a legal agreement in writing, he has the right to withhold his permission for her to use the embryos his DNA helped make, regardless of the reason.

Again… I’ve actually seen my husband in this situation. He raised another man’s child for about ten years, then saw his own children raised by a different man. It was upsetting for Bill to be in that situation, so I can see why it might be problematic for Mr. Terrell. Add in the fact that Terrell hadn’t even wanted to donate sperm in the first place, and you could easily make the case that he never wanted to be a father– even one who is basically just a sperm donor. Since I don’t support forcing women to give birth; I also don’t support forcing men to father children.

Thinking about this situation reminds me of an 80s era episode of the classic sitcom, One Day At A Time. At the time, artificial insemination was a very new concept, so this episode was particularly groundbreaking when it aired in January 1981. An infertile couple, dying to have children but in need of a sperm donor, went to Pat Harrison’s character, Dwayne Schneider, for help. Schneider was almost talked into donating sperm, until he started talking enthusiastically about being involved in the child’s life. The infertile couple then made it clear that beyond donating sperm, Schneider would have no part in the child’s life. In fact, they said they hadn’t decided that they hadn’t decided if they would tell the child the circumstances of his or her birth (many years before home DNA tests, obviously). I remember very clearly what Schneider said in a very sorrowful tone of voice. It was, “I don’t think I can hack that.” Maybe that’s the case for Mr. Terrell, too. Or maybe he’s just a selfish, spiteful jerk, in which case, perhaps it’s better that he doesn’t pass along his genes. Not knowing anything about either party, it’s hard to tell where the truth lies in this case.

Schneider is asked to donate sperm to an infertile couple. In the end, he can’t hack it.

As it was pointed out to me last week when I was dismayed about the fifteen year old boy being evicted from his grandparents’ house after he was orphaned, there was a legal contract in this case. Legal contracts must be binding; otherwise, they do no good. It does seem crazy that another couple could birth and raise children resulting in a pregnancy created by the embryos made by Torres and Terrell. I’m sure it’s heartbreaking to think about it. But this is just one of the many issues that come up when people make babies in an unconventional way. It’s definitely a cautionary tale for those who sign legal contracts. Be sure to consider what could happen, worst case scenario, and make sure the language provides for those situations.

The funny thing is, I’m pretty sure the people who argued with me about the justification of enforcing the legal contract in the case of the teenaged boy would be squarely on Ms. Torres’ side in this case. Both people are pro-life, and Ms. Torres did have pro-life lobbyists at The Center for Arizona Policy working on her behalf to prevail in this case. But then, I tend to be more concerned about the welfare of people who have actually been born than embryos.

Anyway, I feel empathy for Ms. Torres, even though I think the Arizona Supreme Court ruled properly in this case. It’s too bad she didn’t also freeze some of her unfertilized eggs. I hope she’s able to find a way to move past this setback. At least her case has resulted in a new law, which may prevent this from happening in the future… in Arizona, anyway.