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Who Gets Custody of an Embryo If the Marriage Falls Apart?

Photograph by Twenty20

Freezing embryos is one fertility treatment that can help women and couples feel confident about building a family in the future. But what happens when a couple creates embryos and their relationship doesn’t last?

That's what happened to Ruby Torres, a woman in Phoenix who received a cancer diagnosis in 2014 and chose to marry her fiancé and freeze several of their embryos to use at a later date, according to Vice News.

Unfortunately, the couple's marriage didn't last and her husband filed for divorce in 2016. He also did not want to use the embryos they had chosen to freeze. After a court battle, in 2017, a judge ruled that Torres couldn't use the embryos to become pregnant.

The Center for Arizona Policy, an anti-abortion group, heard about Torres and took the matter to the Arizona legislature, framing it as a parental rights issue—and won. Earlier this month, the state's Republican Gov. Doug Ducey signed the new law, which mandates that in the event of a divorce, the spouse who "intends to allow the embryos to develop to birth” will get to keep them. If both spouses want the cells, the judge must sort out their custody battle so that the embryos have “the best chance” to be born.

If prospective parents undergoing IVF don’t negotiate an iron-clad contract, resulting court cases could be explosive.

“This was the most intrusive piece of legislation in reproductive policy that I have ever seen in this country,” said Sean Tipton, a spokesperson for the American Society for Reproductive Medicine. “This law and the people behind it are very clearly anti-reproductive medicine and anti-reproductive freedom.”

George Annas, the director of the Center for Health Law, Ethics & Human Rights at the Boston University School of Public Health, says only a dozen or so court battles like Torres’ have surfaced over the past two decades.

“People don’t want to destroy [the embryos], and that’s not because they think they’re babies,” he said. Most resist destroying the embryos because they represent a long, “usually complicated, and arduous procedure that they went through in order to create these embryos.”

Tipton adds that if prospective parents undergoing IVF don’t negotiate an iron-clad contract—explicitly outlining everything that could go wrong, including a breakup—resulting court cases could be explosive.

Jalesia “Jasha” McQueen could not agree more. In 2010, after a judge ruled in favor of her ex-husband, who refused to allow her to get pregnant using embryos they had created together, the Missouri lawyer came up with a way to help regulate frozen embryos.

Embryo Defense is an online resource, co-owned and co-founded by McQueen, aimed at educating people on building a proper defense for human embryos.

“You’re talking about time, money, pain, emotion,” said McQueen. “Once the process starts, we have to take some responsibility for that. We can’t just say, ‘It’s not a big deal,’ and move on and leave this wave of grieving people behind.”

Though Arizona's new law pledges to absolve the other person NOT wanting the embryos of any parental rights or financial obligations, some believe it is a violation of one's constitutional rights.

“It invites people becoming parents against their will, which is the part that’s unconstitutional, unethical and highly problematic,” Michele Goodwin, director of the Center for Biotechnology and Global Health Policy for the University of California, Irvine, told Vice. “It’s deeply politicized.”

That said, couples might want to consider signing an IVF prenup before freezing those hopes and dreams.

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