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What Do In Vitro Embryos, Divorce and Arizona Have in Common?

Some Arizona couples are considering cryogenically preserving embryos they have created using eggs or sperm from themselves, their spouse, or even a future spouse. A recent Arizona law has made it even more important to understand legally what may happen to those embryos if that couple gets divorced.  

Effective for divorce proceedings filed on or after August 3, 2018, the new law A.R.S. 25-318.03 governs the disposition of embryos in a divorce.  Depending on the circumstances and the goals of the parties, the new Arizona law can provide much-needed clarity as to the outcome, or it can create uncertainty and emotional upheaval.      

As an initial matter, any agreement the parties signed — or may sign — regarding the disposition of the embryos, such as an in vitro fertilization agreement signed at or before the time the embryos were initially created, no longer controls the disposition of the embryos.  The new Arizona law explicitly states that embryos will be disposed and/or awarded pursuant to the terms of the law, even if an existing agreement has contrary disposition terms. As a result of this new law, many married Arizona couples have found themselves with in vitro fertilization agreements that are no longer enforceable.

To fully understand the law, it is important to understand how it would resolve the following situations:

  1. Both spouses agree that the embryos should be destroyed
  2. One spouse wants to keep and/or use the embryos, and the other spouse does not
  3. Both spouses want to keep and/or use the embryos

The statute is silent as to the first scenario.  It can be assumed that the embryos can be destroyed if both spouses agree to do so. If that is the case, we recommend that, as part of the divorce proceedings, the spouses sign a written agreement to that effect.

It is important to understand that the new law favors and promotes the development of the embryos to birth. In other words, it favors the right to procreate over the right to not procreate.  The law directs Arizona courts to “award the in vitro human embryos to the spouse who intends to allow the in vitro human embryos to develop to birth.”  In the second scenario, there are some options for the dissenting spouse who does not want to see the embryos developed to birth.  If that dissenting spouse did not provide gametes (defined as either eggs or sperm) for the embryos, then that spouse will have no legal rights and/or obligations to any resulting child.  However, if the dissenting spouse did provide gametes, that spouse has a choice: he/she will be the legal parent to any resulting child only if he/she agrees in writing in the divorce proceedings to be a parent to that child. 

The second scenario also poses interesting questions for a non-biological spouse. For some Arizona couples, including many gay couples, only one spouse provides gametes for the embryo.  Would it be unfair for a court to award the embryos to the non-biological spouse, against the wishes of the biological spouse? Under the new law, the embryos could be awarded to the non-biological spouse, as long as it is “to the spouse who intends to allow the in vitro human embryos to develop to birth.” It remains to be seen whether or not the Arizona family law courts will allow parties to have equitable exceptions.

The third scenario — where both spouses want to keep and use the embryos — is more open-ended.  Under this scenario, if only one of the spouses provided gametes, the embryos will be awarded to that biological spouse. However — and this is the open-ended part of the law — if both spouses provided their gametes, the law directs the court to award the embryos “in a manner that provides the best chance for the in vitro human embryos to develop to birth.” What does that mean? Given the ambiguity in the law, many questions will undoubtedly arise. For example, if more than one embryo exists, can the court decide to split them equally between the parties?  In determining which spouse provides the “best chance” for the embryos to develop to birth, can the court take into account the socioeconomic status, age, physical health, or mental health of the parties?  These and other questions will be clarified as this new law is litigated in Arizona courts. 

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