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- Legal Status of Frozen Embryos in Arizona
- Key Arizona Statutes Relevant to Embryo Disputes
- What the Courts Consider in Frozen Embryo Cases
- Arizona Case Law: Terrell v. Torres
- Can One Spouse Use the Embryos Without Consent?
- Important Things to Remember About Frozen Embryo Disputes
- Contact a Family Law Attorney From CHM Law
Divorce brings many difficult decisions, but few are as emotionally charged and legally complex as deciding what happens to frozen embryos. For couples who have pursued in vitro fertilization (IVF), these embryos represent far more than medical property. They symbolize the hope of future family, and during divorce, that hope can clash with issues of consent, parental rights, and personal autonomy.
This article is designed to help you understand how Arizona law approaches frozen embryo disputes during divorce. We’ll break down the most relevant statutes, explain how courts typically rule on these cases, and explore what factors may influence the final decision. We’ll also discuss how CHM Law can protect your rights, whether you’re hoping to preserve the embryos for future use or seeking to prevent parenthood after divorce.
If you’re going through a divorce involving stored embryos, it’s important to understand your legal options. This article will explain how Arizona courts approach these matters and provide practical guidance on how to move forward with confidence.
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Reproductive Rights in Divorce
Legal Status of Frozen Embryos in Arizona
Arizona law treats frozen embryos as a unique form of reproductive material. They are not classified strictly as persons or as property.
Instead, courts tend to view them as occupying a special category that involves both potential for human life and the reproductive rights of each party involved.
Unlike custody battles involving children, embryo disputes are not resolved by a “best interest of the child” standard. Instead, the key legal issue is consent—particularly whether one spouse can be compelled to become a genetic parent against their will.
The issue gained prominence in Arizona after several highly publicized cases nationally and locally, prompting legislators and courts to begin crafting more detailed rules around stored reproductive material. However, there is still no single, comprehensive statute in Arizona governing frozen embryos.
Instead, courts rely on contracts signed at fertility clinics and guidance from case law to determine who controls the embryos in the event of divorce.
Key Arizona Statutes Relevant to Embryo Disputes
While Arizona does not have a single statute that directly governs all frozen embryo disputes, several sections of the Arizona Revised Statutes (ARS) are highly relevant:
⑴ A.R.S. § 25-318.03
Effective August 3, 2018, this statute governs the disposition of embryos in a divorce where the parties have stored in vitro embryos. Under the law, if the couple has not executed a valid written agreement regarding the embryos, the court must award them to the spouse who “intends to allow the embryos to develop to birth.”
However, the statute does not allow the court to compel either party to become a legal parent.
This means that even if one spouse is awarded the embryos for implantation, the other spouse cannot be forced into parenthood without their consent. The statute seeks to balance Arizona’s preference for life with each individual’s constitutional reproductive autonomy.
Importantly, A.R.S. § 25-318.03 overrides conflicting contractual provisions for agreements entered into after its effective date. For IVF contracts signed before August 3, 2018, courts may continue to rely on case law such as Terrell v. Torres.
⑵ A.R.S. § 36-2301.01
Although this statute focuses on the requirements and limitations for performing abortions on viable fetuses, it provides insight into how Arizona law recognizes the potential for life and seeks to preserve it. The law requires physicians to take all reasonable steps to preserve the life and health of a viable fetus during an abortion, unless doing so would endanger the life or health of the mother.
While not directly applicable to frozen embryo disputes in divorce, the statute shows Arizona’s broader legislative stance that places significant value on potential life. This viewpoint can influence how courts view disputes involving frozen embryos, particularly when weighing the intent to allow embryos to develop to birth.
⑶ Contract Law Principles (A.R.S. § 44-101)
Under Arizona’s Statute of Frauds, certain agreements must be in writing and signed by the party to be charged in order to be enforceable in court. This includes agreements that cannot be performed within one year (A.R.S. § 44-101(5)), which commonly applies to IVF agreements that outline the long-term disposition of embryos.
Most fertility clinics in Arizona require both partners to sign consent forms addressing what should happen to embryos in the event of divorce. These written agreements typically meet the legal requirements under A.R.S. § 44-101 and are often upheld by Arizona courts as binding contracts.
If a couple clearly documented their intentions in a signed IVF consent form, that contract can serve as a key piece of evidence during divorce proceedings. Courts generally enforce these agreements unless they violate public policy or fundamental rights, such as forcing someone into parenthood against their will.
What the Courts Consider in Frozen Embryo Cases
When deciding who gets control of frozen embryos during divorce, Arizona courts weigh a few core factors:
- Intentions of the Parties: The court will consider whether one spouse intends to allow the embryos to develop to birth.
- Written Agreements: Courts strongly defer to IVF agreements that meet statutory and contract law standards.
- Reproductive Autonomy: Courts are prohibited from ordering someone to become a parent against their will.
- Timing of the Agreement: If the agreement was executed before August 3, 2018, Terrell v. Torres may apply. If executed afterward, A.R.S. § 25-318.03 governs.
If there is no agreement, or the agreement is ambiguous, the court will apply the statute and public policy principles to decide the outcome.
Arizona Case Law: Terrell v. Torres (2005)
The Arizona Supreme Court’s decision in Terrell v. Torres, 2020, addressed a pre-2018 embryo disposition agreement between a couple who had undergone IVF before the wife’s cancer treatment. Their agreement stated that the embryos could only be used with both parties’ contemporaneous consent. If they divorced and could not agree, the embryos were to be donated.
When the couple divorced, Torres wanted to use the embryos, but Terrell objected. The Arizona Supreme Court ruled that the contract required donation since mutual consent was not given.
The court emphasized that where valid written agreements exist, they must be enforced—rejecting the idea that courts can substitute a balancing-of-interests test when contract terms are clear.
However, it’s important to understand that Terrell v. Torres applies only to embryo agreements signed before August 3, 2018. Arizona law has since changed: A.R.S. § 25-318.03 now governs frozen embryo disposition for agreements executed after that date. Courts must now follow the statutory mandate regardless of what a prior agreement may say.
Can One Spouse Use the Embryos Without Consent?
Generally, no. Whether under Terrell v. Torres or A.R.S. § 25-318.03, Arizona law does not allow courts to compel one party to become a parent without their consent.
Even if one spouse is awarded the embryos, the other cannot be forced to assume parental rights and responsibilities unless they affirmatively agree.
This principle reflects a strong protection for individual reproductive autonomy in Arizona. If you’re concerned about how your IVF agreement affects your rights—or if you never signed one—a family law attorney at CHM Law can help you understand your legal standing and options.
Important Things to Remember About Frozen Embryo Disputes
- A.R.S. § 25-318.03 governs embryo disposition for agreements signed after August 3, 2018.
- For agreements made before that date, Arizona courts will apply Terrell v. Torres and enforce the contract as written.
- Courts cannot compel a person to become a parent without their consent.
- IVF agreements must be clear, written, and signed to be enforceable.
- Arizona courts give significant weight to the intent to allow embryos to develop to birth.
- Public policy concerns may override contract terms if enforcing them would violate a party’s fundamental rights.
Contact a Family Law Attorney From CHM Law
If you are facing a divorce that involves frozen embryos, it is critical to have experienced legal counsel who understands Arizona’s unique approach to reproductive rights. At Colburn Hintze Maletta, our legal team is committed to protecting your rights and helping you reach a fair outcome. Whether you want to preserve the embryos for future family planning or need to prevent their use to avoid unwanted parenthood, we can help you navigate the legal process. Our attorneys will carefully review your IVF agreements, explain your rights under A.R.S. § 25-318.03, and build a case that aligns with your values and legal goals. CHM Law offers free consultations so you can discuss your concerns directly with an experienced family law attorney. Call us today at (602) 825-2500 to schedule your consultation. Your future matters, and we’re here to help protect it.
Attorney Darin Colburn has experienced first-hand just how difficult going through a family law matter such as divorce is when his parents divorced when he was 6 years old. Twenty years later, he has devoted his entire legal career to helping those facing similar issues. Darin attended the University of Arizona and graduated Cum Laude from the Eller College of Management. Darin is an experienced trial attorney that excels in high-net-worth divorce, complex business valuations, and messy child custody disputes.
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