Frozen Embryos Continue to Make Litigation Headlines

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.

Arizona Supreme Court Reverses, Allows Discard of Embryos Per Prior Agreement

On January 23, 2020, the Arizona Supreme Court reversed an embryo disposition ruling from the state’s intermediate court. In the case, Terrell v. Torres, the trial court had first denied the ex-wife’s claims, followed by the intermediate appellate court allowing her access to her and her former husband’s embryos for procreation over her ex-husband’s objection. (Legally Speaking April 2019). In reaching this latest decision, Arizona joins the majority of courts that have upheld couple’s written prior cryopreservation agreements. The case stands in contrast to recently enacted legislation in that state, which is intended to override dispositional documents in favor of the former spouse who wants to develop the embryos to life. The statute does not apply retroactively to this case.

Testimony at the trial court level, where the ex-wife’s claim was rejected, included the fact that she had a 1% chance of achieving pregnancy following chemotherapy. That fact, taken together with a debatable interpretation of the IVF agreement’s language to the effect that the couple had left the decision to the court, led the Arizona Court of Appeals to reverse the trial court and award the embryos to her.

The statute was reportedly enacted in response to the trial court’s initial refusal to award the embryos to the ex-wife, and the sympathy her infertility had generated. The Arizona law favoring the person who wants to procreate with the embryos applies regardless of any existing agreement. Some legal commentators have suggested the statute is unconstitutional, but it has yet to be tested, and leaves Arizona clinics in a difficult position with respect to their documentation. While the Court of Appeals found that the statute did not retroactively apply to the dispute under review, it stretched its interpretation of the language in the clinic documents to justify awarding the embryos to the ex-wife for reproduction based on a balancing of the parties’ interests test.

The Arizona Supreme Court has now reversed that decision and held that in the parties’ “Embryo Cryopreservation & Embryo Disposition” agreement with the IVF clinic, they had chosen a clearly provided option that in case of divorce and disagreement, the embryos would be donated to another couple. It then ruled it would follow the couple’s prior selected choice. Although the court did not mention this, as the recent ruling in Connecticut remarked (Balboa v. Goodwin), it is worth noting that the parties’ agreement was to discard, not allow one to procreate, which may have made the court’s decision to defer to their prior agreement an easier outcome than it might otherwise have been.

These judicial and legislative developments highlight both strikingly different perspectives of lawmakers over pre-implantation IVF embryos and how different courts, even in the same state, may interpret the same contract differently. While the lower courts found the couple’s agreement with the IVF clinic was unclear and thus required a court to balance the parties’ interests, the Arizona Supreme Court identified language it ruled was a clear directive in the contract to donate the embryos in the absence of contemporaneous consent of both parties for one’s unilateral reproductive use, which should be followed.

Terrell v. Torres, No. CV-19-0106-PR, 2020 WL 370239, at *1 (Ariz. Jan. 23, 2020), and A.R.S. Sec. 25-318.03.

Two New Lawsuits Filed over Ohio Tank Failures

As the statute of limitations in Ohio nears, a woman and couple each filed two new lawsuits in early February 2020, for eggs and embryos respectively, that they allege were lost when the embryo tank alarms, installed and monitored by CAS DataLoggers, Inc., failed at University Hospitals in March 2018. The lawsuits were filed in the Ohio county where the company is located. In related developments, another 150 filed suits have reportedly been settled out of court, with no further details publicly available, and one family--whose lawsuit claiming their embryos were human beings had garnered attention, lost their appeal in March 2019 and then settled their lawsuit in July 2019. It is unclear how many filed or unfiled cases remain to be resolved.

Cleveland Plain Dealer (2/5/20; 9/29/19; 3/20/19)

Chinese Single Woman Sues Clinic for Right to Freeze Eggs

A single, Chinese woman has sued a Beijing clinic for refusing to freeze her eggs. Government regulations preclude her, as an unmarried woman, from accessing fertility treatment, including egg freezing, IVF and egg donation. After being told by a doctor she had healthy eggs and should instead get married, 31-year-old activist Teresa Xu instead sued, claiming discrimination against her as a single woman. Chinese law and official policy are based on the traditional family unit, and according to published reports of the case, the government position is based on fear that allowing broader access to family building treatments could lead to surrogacy or illegal egg selling. There are no similar prohibitions against sperm banking for single men. For Xu’s supporters, the issue is being framed as a reproductive rights issue.

A hospital spokesman said the facility had no choice but to follow government regulations on assisted reproductive technologies. Xu claims the policy is discriminatory, forcing single women to go overseas to the United States or Thailand to freeze their eggs or pursue IVF and other fertility treatments, options that are cost prohibitive for many women. Xu, like many American women, says she wants to have a family after continuing to work for a few more years, and, as a freelance editor, she cannot afford the costs of going abroad to freeze her eggs. The case is pending in Beijing.
NYTimes (12/24/19)

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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