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Frozen Embryos Back in the Courts and Legislatures

Arizona Passes Law Dictating Frozen Embryo Dispositions

In April 2018, Arizona Governor Ducey signed into law a controversial embryo disposition law, which was strongly opposed by ASRM and RESOLVE, among other groups. The law essentially overrides any patient consents or dispositional agreements for their leftover embryos and instead empowers divorce courts to award the embryos to the party who, in the language of the new law, “intends to allow the in vitro human embryos to develop to birth,” regardless of whether or not the other spouse objects to their use for procreation.

The law also provides that if both parties represent to the court that, if awarded the embryos, they would develop the embryos to birth (presumably as opposed to discarding them or donating them for research), then the court shall resolve the dispute “in a manner that provides the best chance” for the embryos to develop to birth. If only one party was a progenitor, that party is to be awarded the embryos over the non-genetic contributor. Interestingly, the new law does not address the parentage rights and obligations of the party who is awarded the embryos for the purpose of developing them to a born child. That omission leaves open the very real possibility that a party could simply claim they were better situated to ensure the embryos were developed into live babies, whether by themselves, or by anyone they identified and provided the embryos to. The new law does provide that the spouse who is not awarded the embryos is to be relieved of parental rights and responsibilities unless he or she consents in writing to be a parent. If not, the former spouse is to provide genetic information as a donor. This information is to be kept by the medical facility for 99 years (with provisions to transfer records if the facility ceases its operations), and is accessible to the resulting child’s legal parent or guardian or directly to the child after he or she reaches age 18.  The law was drafted after an oncofertility patient, Ruby Torres, was denied use of her frozen embryos by a court in 2014 following her divorce and ex-husband’s objection to the use of the embryos.

The law is likely to have a significant impact on IVF practice in Arizona, although it may not have the drafters’ intended impact. The law authorizes courts to override any prior patient choices (and contemporaneous objections) and should thereby make clinic documents outlining any patient options unenforceable at best. Some suggest Arizona patients will ship any cryopreserved embryos out of state to avoid the new law, although questions may remain as to whether or not a divorce court would have jurisdiction over embryos that are deemed joint or marital property of Arizona residents in any divorce proceedings in that state, regardless of the location of the disputed property.

Ironically, as written, the law may do little to protect oncofertility patients such as Ms. Torres--patients who have lost their ability to create new embryos--since a healthy former male partner can now simply argue that he is in a better position to provide the embryos with their “best chance” at being born by, for example, providing a healthy uterus via a new spouse or surrogate. In addition, since the law does not distinguish birth from parentage, a healthy ex-spouse could not only argue that he or she should be the one to receive the embryos for themselves but could also donate the embryos to other healthy individuals for reproduction. The law also has no time limits to use the embryos, nor any provision to revisit a court order if the party who is awarded the embryos fails to use them as they represented they would to the court at the time of the divorce and dispositional award.

The law’s supporters have argued that the new law simply addresses and clarifies property rights.  Opponents view the law as part of a broader, continuing effort to imbue embryos with personhood status, and potentially a new front in the so-called “personhood” bills that have been introduced in various state legislatures in recent years. Whether any other states will introduce similar legislation, and what Arizona clinics and patients will do in the wake of this new restrictive law, remains to be seen.

Sec. 25-318.03, amending Title 25, Ch. 3, Article 2 ARS Sec. 25-318.03 (formerly AZ Senate Bill1393) (signed into law April 2, 2018). A copy of the actual law can be found at: https://legiscan.com/AZ/text/SB1393/id/1702406

Georgia Supreme Court Dismisses Frozen Embryo Appeal

A closely watched appeal of an embryo dispute following a couple’s divorce has been dismissed by the Georgia Supreme Court without the court issuing an opinion. The case, Wilson v. Delgado (LS June 2017), involved a divorced couple’s leftover embryos that had been formed using donor eggs. The couple had signed clinic forms that the embryos were joint property, and, upon divorce, their disposition would be decided by a court, atypical language which left the couple vulnerable to a court’s ruling rather than their private decision. The lower court had awarded the embryos to the ex-husband to discard citing both the 1992 seminal Davis v. Davis decision, which looked to rights in the absence of a couple’s agreement, as well as Litowitz v. Litowitz, a 2002 case out of Washington state deciding that a wife who was not a progenitor had a lesser claim to the embryos absent a contract agreeing to equal rights with the progenitor spouse. At oral arguments in April, 2017, Wendy Wilson had argued both that genetics was an “outdated” basis for determining parentage and should not be controlling, given modern uses of ART, as well as that her ex-husband should be involuntarily turned into a donor allowing her to use the embryos as a sole intended parent.  With the court’s decision to dismiss the case, in its words having found that the appeal was “improvidently granted,” those issues will need to await another day and court for any guidance to providers and patients.

Wilson v. Delgado, GA Sup. Ct (S17A0797; dismissed 11/2/17).

More States Pass 2017 Uniform Parentage Act, Includes Guidance and Protections for Surrogacy Participants

In addition to Washington state, at least three other states (Vermont, Rhode Island and California) have enacted, or are in the process of enacting, all or parts of the 2017 Uniform Parentage Act (UPA 2017), with more states expected to enact the law in the coming year. The model law also has been unanimously approved by the National Child Support Enforcement Association (NCSEA). (A detailed explanation of the 2017 UPA was reported in LS, March, 2018 and Jan 2018).


A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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