Top Arizona court: Divorced woman can’t use frozen embryos

PHOENIX — A woman can’t use her frozen embryos to have a baby over opposition from her former husband under terms of the contract they signed with a fertility clinic, the Arizona Supreme Court ruled Thursday.

The high court ruling ends a case that drew support from social conservative groups for the woman, Ruby Torres, who had her eggs fertilized prior to treatment for an aggressive cancer in 2014 that rendered her infertile. After the couple divorced in 2017, her former husband didn’t want to have children together and asked the courts to order the fertilized eggs donated under terms of the contract.

A trial court ruled that the contract left it up to the courts to determine the fate of the embryos and then sided with the ex-husband, John Terrell, saying his interest in not having children he would be financially responsible for outweighed Torres’ right to have a biological child.


The state Court of Appeals overturned that ruling, saying Torres’ rights to have children prevailed over Terrell’s right not to become a father.

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Both courts got it wrong, according to the state Supreme Court. The lower courts ruled that a contract clause allowed courts to determine whether to donate or implant the embryos. Terrell’s attorney’s had pointed to a contract provision that required the consent of the other person for implantation as controlling.

The high court unanimously agreed with Terrell that the phrase in question “means that upon divorce or dissolution of the relationship, the parties chose to donate the embryos absent a contemporaneous agreement for use by one of them.” They noted the trial court came to the right conclusion, the only one that the contract allowed if both parents could not agree.