A divorced woman is entitled to implant some fertilized embryos created before she was married despite the objections of her former husband, the state Court of Appeals has ruled.
In a split decision, the majority acknowledged that the contract Ruby Torres and John Terrell signed with the clinic doing the in-vitro fertilization spells out in the event of separation of divorce the embryos could be used solely with the “express, written consent” of both parties.
Now, Torres who was undergoing chemotherapy at the time, wants to implant the embryos if and when she remarries. Terrell, who does not consent, got a trial judge to rule that she can’t do that.
But appellate Judge Jennifer Campbell, writing for the majority, said that, on balancing the interests of both parties, Torres is entitled to do with the eggs what she wants. And Campbell said it is irrelevant that if Torres gets the embryos, Terrell could be legally responsible for child support.
Friday’s ruling drew a stinging dissent from Judge Maria Elena Cruz who chided her colleagues for ignoring the plain language of the contract the pair signed.
What makes the case particularly noteworthy is that Torres got the Arizona Legislature last year to approve a new law saying that judges must grant viable embryos to whichever parent will agree to allow them to be born, regardless of what a couple decided when first having an embryo frozen.
That means Arizona law now reads a man’s decision he no longer wants to be a parent could be overridden if his ex-wife wants to become a mother.
But what it also means is that a woman could wind up having no say as her former husband gives the frozen embryos to a new spouse who would give birth to a child who is biologically related to her.
That law, however, was not a factor in Friday’s ruling, with the court saying they can’t be bound by a statute that didn’t exist at the time.
Attorney Claudia Work, who represents Terrell, told Capitol Media Services her client is “weighing his options” on whether to seek state Supreme Court review.
Court records show that Torres was diagnosed in 2014 with bilateral breast cancer, with her oncologist saying she would need to begin chemotherapy within a month. He also told her that treatment would impair her ability to get pregnancy.
Read the rest at: Frozen Dad