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The Arizona Supreme Court ruled Thursday that a woman (who is now infertile after surviving aggressive cancer treatment) may not use the embryos she had frozen before treatment to have a baby without her ex-husband’s consent and must donate them instead.

Ruby Torres, 39, decided to have her eggs fertilized in 2014 after she was diagnosed with bilateral breast cancer and was told by an oncologist that chemotherapy would likely make her infertile. John Terrell, her boyfriend at the time, initially declined to serve as a sperm donor but eventually agreed, AZ Central reported, citing court documents. The couple signed an agreement at a fertility clinic that stated, should they split up, the embryos would not “be used to create a pregnancy without the express, written consent of both parties.” The couple married days after signing the contract, but divorced three years later in 2017.

During their divorce proceedings, Terrell asked the Maricopa County Superior Court to prevent Torres from having the embryos implanted. He said he no longer desired to become a father to children he’d be financially responsible for. The court sided with him and ordered the embryos to be donated.  The Arizona Court of Appeals overturned that decision in March, ruling that Torres’ rights to have children prevailed over her ex-husband’s objections to becoming a parent.

The back-and-forth court battle inspired a bill in the Arizona State Legislature allowing a former spouse to use the embryos against their former partner’s wishes, but relieves the ex-spouse of parental responsibilities like child support. It became law in 2018, but was not retroactive to include past cases.  

On Thursday, the Arizona Supreme Court upheld the couple’s initial contract, which determined that both parties must consent in order for Torres to use the embryo to become pregnant. The high court, serving with only five of seven justices, unanimously agreed that the embryos should be donated to a third-party.  “We are cognizant of the unavoidable emotional fall-out attendant to the disposition of the embryos here,” Justice Ann Scott Timmer wrote in the ruling. “But the family court was required to enforce the parties’ chosen disposition of the embryos as set forth in the Agreement.” For more information regarding your rights with respect to this specific issue or any others in family law, contact the attorneys at LASITER & JACKSON, PLLC at (602) 234-5900.  Both Nicole P. Lasiter, Esq. and Stephanie L. Jackson, Esq. are compassionate and highly experienced in all areas of family law – both general and specific.


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