Arizona Human Embryo Ownership

By Blake Whiteman, Partner with Jennings Haug Cunningham

On April 3, 2018, Arizona Governor Doug Ducey signed into law Senate Bill 1393, codifying into statute Arizona’s disposition of in vitro human embryos within a proceeding for dissolution of marriage.

Senate Bill 1393 and its subsequent adoption into A.R.S. § 25-318.03 creates a set of defined rules that may override any In Vitro Fertilization agreements by couples who decide to freeze embryos. Most notably, in matters where one spouse may take a position objecting to the birth of an embryo, the statute empowers the Court with the ability to override the objecting spouse and award ownership of the embryos to the spouse intending to develop the embryos to birth. Finally, the Statute creates a default rule for the divorcing spouse who objects to the conception of the embryo following divorce, and in trade exempts the objecting spouse from recognition of parental rights and/or obligations; thus creating an “opt-in” default rule for divorcing spouses who can memorialize in writing their decision to be recognized as a parent.

On January 24, 2020, The Arizona Supreme Court issued its ruling in Terrell v. Torres, which set forth a set of default rules for disposition of embryos that are neither subject to A.R.S. § 25-318.03 nor contractual directives memorialized in any In Vitro Fertilization agreements. Within a sentence in the lone footnote, the Court opined the Statute was not applicable retroactively but did not define retroactive application: is retroactive application limited to dissolution proceedings filed before adoption of A.R.S. § 25-318.03 or defined as the more expansive view, which would result in embryos created before April 3, 2018 not being subject to A.R.S. § 25-318.03?

In addition to litigation regarding the Statute’s applicability, we can expect future litigation regarding the Statute’s constitutionality. Arizona’s Constitution bans the enactment of any law “impairing the obligation of a contract”, which limits the legislature’s ability to alter any party’s obligations under existing contracts. We can expect litigation over an In Vitro Fertilization agreement, signed prior to adoption of the Statute, having contractual embryo disposition language running contrary to A.R.S. § 25-318.03(A). Such a scenario would test the Constitutional limits of A.R.S. § 25-318.03(B) and its mandate overriding any preexisting agreement.

There is the additional issue of the lack of harmony between the Statute’s mandate allowing for the objecting spouse to be free of the legal rights and parental duties, and the strong public policy codified into A.R.S. § 25-501, regarding the duty of support for a person’s natural, unemancipated minor. The legislation enacting Senate Bill 1393 only created A.R.S. § 25‑318.03, and failed to harmonize the Statute with Arizona’s laws on parental duties of support, codified in Arizona Revised Statutes, Title 25, Chapter 5, Article 1. While A.R.S. § 25-318.03(C)-(E) removes obligations of support from the spouse objecting to development of the Embryo, there remains the possible conflict with A.R.S. § 25-501(B), in the future case of a minor born from a developed embryo seeking support from a biological parent, under the theory that A.R.S. § 25-501(B) creates a strong presumption of entitlement of support of minor from that biological parent.

Arizona’s courts will further struggle with determining applicable law in matters involving Arizona residents disputing disposition of embryos physically located outside Arizona’s borders. Absent any contractual language in the In Vitro Fertilization agreement, Courts will first struggle to determine whether jurisdiction over the out of State embryos even exists. In the event Arizona’s courts do find jurisdiction, absent any choice of law provision within any In Vitro Fertilization agreement, Arizona’s courts will struggle to decide whether to apply Arizona’s law or the lex loci of the jurisdiction that embryo is located within.

Blake Whiteman is a partner with Jennings Haug Cunningham‘s family and domestic relations law practice. He can be contacted at [email protected].