Embryos, divorce and a broken heart
With Ariz. law lacking, woman is ordered to give up fertilized eggs
Ruby Torres had single-minded focus on becoming a lawyer.
She completed her undergraduate and graduate degrees, went to law school and then landed a position at a local firm.
Her life was headed exactly on the right track. Then she felt a small lump during a breast selfexam. In June 2014, tests revealed an aggressive form of breast cancer.
The 36-year-old Phoenix woman had always wanted a child, but she soon realized that the grueling effect of cancer treatment could render her unable to conceive a child and give birth.
During a whirlwind week the following month — before she would begin cancer treatment — Torres and her then-fiance, John Joseph Terrell, got married and signed a contract to undergo in vitro fertilization.
“The intent of creating these embryos was to have the right to have children down the road,” Torres said in a recent interview with The Arizona Republic.
She underwent chemotherapy and radiation treatment, and her cancer now is in remission. Her marriage, however, ended in divorce. It has left a Maricopa County judge with the tricky question of how to divide the couple’s assets — including seven frozen embryos that have been stored at a fertility bank.
Terrell, who filed for divorce last year, told the court that he does not want to pursue children
with his ex-wife.
But Torres desperately wants children and the frozen embryos. She said they likely are her only opportunity to have biological children.
But with no precedent cases to rely upon in Arizona, Family Court Judge Ronee Korbin Steiner was faced with making a King Solomon-like decision.
The judge ordered that the embryos be donated to a third party, such as a fertility bank or another couple.
Based on the contract the couple signed prior to in vitro fertilization and other evidence, Steiner wrote that Terrell’s “right not to be compelled to be a parent outweighs wife’s rights to procreate and desire to have a biologically related child.”
The Aug. 21 order devastated Torres, who has 31 days to appeal.
Torres does not know whether she wants to keep fighting in court, noting an uncertain outcome that could be costly and lengthy.
“This was my only opportunity to have a child,” Torres said. “Prior to cancer, it was so important to go to school. I re-evaluated my life. I wanted an opportunity to have a child, to provide for them, to give them everything that I could in this world.
“Your right to have a child in the state of Arizona can be taken away by a judge,” she said, fighting back tears.
Even though her regular three-month medical checks consistently have shown no signs of cancer, she does not yet have medical clearance to carry a child. She’s optimistic she could receive a doctor’s approval by December.
But without the embryos, she said, it’s unlikely she will be able to have her own children.
She no longer produces eggs following chemotherapy. Although she could have her ovaries stimulated, it’s unlikely she would produce viable eggs.
“That’s why this was so important to me,” Torres said.
Allie Stoddard, a family-law attorney representing the ex-husband, Terrell, said the judge upheld the terms of the contract the couple had signed.
“While she has an interest, my client also has an interest. They are not compatible,” Stoddard said. “It is unfortunate, and of course no one wants her to be necessarily deprived. At the same time, you have to consider my client has rights, also.”
According to court documents, Terrell testified during the case that he was “doing her a favor” by signing a contract for in vitro fertilization. He said he did not expect she would live long enough to have kids without him.
He said he also worried about having financial obligations for a child he might not have a relationship with, and about how a child might affect any inheritance he might receive, according to a dissolution decree filed at Maricopa County Family Court.
Torres said she had no intent to seek financial support from Terrell if she had children, according to court documents. It would be Terrell’s choice whether he wanted to be involved in the child’s life, she said.
However, the judge noted in her decision that the state of Arizona could pursue child-support payments from Terrell in the event that Torres ever sought public benefits.
Terrell, according to court documents, said that he relied upon a “consent provision” that stated neither he nor Torres could use the embryos without the written permission of the other person.
Torres acknowledged in court documents that she could have chosen to store and freeze unfertilized eggs, but she wanted the eggs fertilized because her intent was to preserve the right to have a child following treatment.
The judge noted that Arizona lacks any law that could provide guidance for the court in such a dispute.
Other states have laws that specify former spouses, unless they consent, are not considered parents of children born through in vitro fertilization following divorce. These laws also allow a former spouse to withdraw permission at any point before a woman carries an embryo.
“Arizona does not follow this law and such policy decision is left to the Arizona Legislature,” Steiner wrote. “As a result, the determination as to the disposition of the embryos is now left to the court.”
Torres said that she worries about the uncertainty of the embryos’ fate, given her cancer diagnosis. She tested positive for a genetic mutation called BRCA, which carries a higher risk for cancer. The embryos could be predisposed to that genetic risk.
“They will be donated, and I will never know who gets them and whether they are successful,” Torres said.