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Divorced woman can't use frozen embryos, Arizona Supreme Court rules

The decision says a woman can't use them to have a baby if her ex-husband doesn't want to have children with her.
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A divorced Arizona woman cannot use her frozen embryos when her ex-husband doesn't want children with her, the state’s highest court ruled last week.

The ruling handed down Thursday relied on a contract signed by the couple before they were married that said if they broke up, they had to agree to have a baby or donate the unused embryos.

"I’ll never know what it feels like to be a mother," Ruby Torres told Nightly News. "I never thought we would get to where we are today."

Torres was diagnosed with cancer in 2014 while she was dating John Terrell. Before starting chemotherapy, Torres decided to undergo in vitro fertilization, or IVF, using donor sperm. Terrell, her boyfriend at the time, agreed to be the donor.

One month later, the couple signed a contract with a fertility clinic. The agreement said that any fertilized eggs would be considered joint property, and both parties would have to agree about what to do with them if the relationship ended.

Four days after signing the contract, Torres and Terrell married. They started IVF shortly afterward and produced seven viable embryos, according to court records.

Three years later, Terrell filed for divorce. Torres still hoped to become a mother, and asked to use the existing embryos since chemotherapy ruined her chances of getting pregnant again.

“She wanted to … force my client to become a father against his will,” Terrell’s lawyer, Eric Fraser, told NBC affiliate KPNX.

Under Arizona law, Terrell would still be financially responsible for the child even if the baby was born after he and Torres split, according to Fraser.

“He would be on the hook for child support for 18 years,” he said.

Torres’ lawyer, however, said his client planned to remarry and have the new father adopt any future child. She would not have required financial assistance from Terrell, Murray said.

The case inspired an Arizona law passed in 2018 that would have given Torres the opportunity to use her embryos without Terrell’s consent. Because the statute is not retroactive, it does not apply to Torres.