Who gets frozen embryo custody after a divorce in Arizona?

Arizona family lawIn vitro fertilization is a procedure in which an egg is fertilized by sperm in a test tube or somewhere else outside of the body and stored until a later time. A couple may choose this method of reproduction for any number of reasons. But what happens if the couple divorces before deciding to have the baby? Who gets custody of the frozen embryo?

Before July 1, when a new controversial law went into effect, a judge had ruled that a woman who was divorcing – Ruby Torres – had no right to use seven embryos that were formed with her then-fiance’s sperm. Earlier this year, we discussed Torres' case, as well as the provisions of Senate Bill 1393.

According to a CBS News report, Torres and her ex-husband John Terrell went through in vitro fertilization after Torres was diagnosed with breast cancer. She worried she might not be able to have children. By the time doctors said she could have children, she and Terrell were divorcing. She wanted children and he didn’t. And the judge sided with him.

New in vitro fertilization law raises questions

The ruling fell in line with the way most courts across the country have decided on the issue. But the new Arizona law means the spouse who wants the baby will have access to the embryos. The law has stirred emotions on both sides. According to CBS News, supporters say the law protects someone’s right to his or her embryos. On the other hand, opponents argue the law means someone might be forced to become a parent against his or her will.

Under the new law, the spouse who no longer wants children will have no parental responsibility. Additionally, he or she will not have to pay support for the child. But opponents of the law say the emotional connection to the biological child will be difficult, if not impossible, to ignore.

“You are hoping to move on and you've got an ex who is essentially asking you to impregnate them and have this lingering lifelong tie with them,” Terrell’s attorney told CBS News. “Even if the law states that they're not a legal parent, they're still an emotional parent.”

Arizona’s law is unusual in comparison to decisions made in courts across the country. In most cases, both sides must agree to have embryos implanted. The courts often rule in favor of the person who does not want to be a parent.

Because of conflicting rulings throughout the country, the issue of frozen embryo custody may one day end up before the Supreme Court. The new Arizona law cannot be applied retroactively, which means it won’t have an impact on Torres. But it could very well impact thousands of other couples in similar situations.

Even in conventional child custody cases, issues can become complex. If you’re going through a divorce, you can feel overwhelmed. When so much is at stake, it’s important to have an experienced attorney at your side. Contact us today at Brown, Naegle, Crider & Jensen LLC for a consultation.

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