Arizona Divorce: A Custody Dispute Over Frozen Embryos

Q: How are frozen embryos handled in a divorce?

Phoenix divorce attorneys know that some of the most hotly-contested issues for a couple getting divorced involve their children.

If child custody and visitation, referred to as legal decision-making and parenting time in Arizona–and child support–wasn’t challenging enough for a couple’s to agree on with respect to their existing children, a recent case involving the disposition of a divorcing couple’s frozen embryos brings the concept of child custody to a whole new level of complicated.

After the case went all the way up to the state’s highest court, the Arizona Supreme Court ruled against the wife and ordered that the couple’s frozen embryos be donated in accordance with the terms of an agreement they signed with the fertility practice at the time the embryos were created.

What is fertility preservation and how may it affect divorcing couples?

Fertility preservation is common when patients are facing a cancer diagnosis and the treatment for it threatens their ability to have a biological child. In these cases, they may elect to freeze their eggs or sperm (or often in the case of married couples, their embryos) prior to undergoing the cancer treatment.

What makes this Arizona frozen embryo case particularly tragic is that the woman was facing cancer at the time the embryos were created and underwent in vitro fertilization using her eggs and her then-boyfriend’s (and now ex-husband’s) sperm to create the embryos that were frozen. This was done because the cancer treatment could cause her infertility. The frozen embryos could later be thawed and implanted in her uterus– so that she could get pregnant with her biological child– after her cancer battle was won.

Unfortunately, the couple divorced before using the embryos and the husband reportedly did not want to father any children with his ex-wife. According to the agreement they signed, in the event of a break-up, the embryos would have to be donated to another couple unless the parties agreed that one partner could use them. The ex-husband won’t agree–despite the embryos allegedly being the now-older woman’s “only chance” at having a biological child. According to the high court, its “hands were tied”.

State laws and fertility practice procedures and contracts differ, but women in similar positions might consider freezing all or some of their eggs unfertilized, rather than creating embryos with a current partner’s sperm if that is an option in their state. That way, the eggs can be thawed when the woman is ready to use them and fertilized at that time with the sperm of her current partner or a donor. But because the embryos in this case were created with the eggs and sperm of the divorced couple, the ex-husband has an interest in and can object to the ex-wife’s use of the embryos in creating a child he reportedly doesn’t want to be forced to be a parent to. This is what the couple agreed to in their contract with the fertility clinic and that is what the court ultimately enforced.

If you are considering getting divorced in Arizona, or have been served with divorce papers, or have any questions regarding a family law matter, Cohen Family Law can help you. Contact us today for a free consultation.

From our office in Phoenix, we have been helping clients throughout Arizona navigate their family law issues since 1982. It’s all we do.