UPDATE, April 4, 12:57 p.m.: Republican Gov. Doug Ducey signed SB 1393 into law on April 3.
An Arizona cancer survivor’s court battle for frozen embryos created with her ex-husband has prompted GOP legislation that is sounding alarms among the nation’s largest assisted-reproduction groups.
The infertility associations warn the Republican-backed bill raises the specter of forced parenting and is possibly unconstitutional. But the bill’s backers claim it’s a tailored fix for one-time spouses who desire biological children.
The case hinges on the frozen embryos of an Arizona woman, Ruby Torres. Before undergoing treatment for breast cancer in 2014, Torres created seven embryos with her then-fiancé. After the marriage ended in divorce, Torres sued for possession of the frozen embryos, arguing they represented her only chance to have biological children. Her ex-husband opposed her case, unwilling to shoulder financial responsibility for any children that might result from the frozen embryos.
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Torres and her ex-husband had signed a medical agreement for the in vitro fertilization (IVF) treatment. A Maricopa County family court judge based her decision on the agreement, ordering the embryos to be donated to a fertility bank or another couple.
But new Arizona legislation could tip the balance in Torres’ favor. SB 1393 would require the courts to award frozen embryos caught up in custody disputes to “the spouse who intends to allow the in vitro human embryos to develop to birth.”
The bill is backed by the state’s influential Center for Arizona Policy, an arm of the anti-choice Family Research Council. It is sponsored by state Senator Nancy Barto (R-Phoenix), whose legislative record includes anti-choice bills to impose new abortion clinic reporting requirements, restrict medication abortion, ban fetal tissue research, and defund Planned Parenthood.
Under the legislation, the spouse who does not want the frozen embryos would not bear parental or financial responsibility for any resulting children.
“No one is forcing anyone to be a parent,” Torres told lawmakers in a hearing last week. “There will be a child out there if someone elects to use my embryos that I will never meet, that I will never be able to care for, that will never know about their genetic history.”
The bill also requires infertility clinics to store individuals’ genetic material for 99 years.
The legislation cleared the state senate Health and Human Services Committee last week on a party line vote. Republicans control both legislative chambers and the governor’s office.
Critics warn that the Republican bill represents a government mandate that turns former couples into “forced gamete donors.” They call the legislation a backdoor attempt to grant embryos legal rights, or personhood.
“It could be exceedingly painful to have one’s blood-related children being born against one’s wishes and then being faced with the dilemma of whether to stay separate from one’s actual children versus take on lifelong financial support and childrearing,” wrote Barbara Collura, president and CEO of Resolve: The National Infertility Association in a February 5 letter to Barto and other lawmakers.
Collura noted that a Missouri appeals court in 2016 had found giving frozen embryos to one spouse over another violated a parent’s constitutional right to privacy. But Barto told Rewire in an email the bill simply clears up a “gray area of the law.”
Arizona law is silent on the handling of frozen embryos in such cases, as noted by Judge Ronee Korbin Steiner, who ruled in the Torres case. Steiner found the ex-husband’s “right not to be compelled to be a parent outweighs wife’s rights to procreate and desire to have a biologically related child,” as Arizona Central reported.
Dr. Christos Coutifaris, president of the American Society for Reproductive Medicine, and Dr. David Seifer, president of the Society for Assisted Reproductive Technology, are troubled by the legislation, which they described in a joint letter to lawmakers as a “back-door attempt” at so-called personhood, an anti-choice effort to grant constitutional rights to fertilized eggs, zygotes, embryos, and fetuses.
“Obviously, the real agenda of SB1393 is to establish a process by which embryos cannot be discarded or donated for medical research,” they wrote.
Barto contends that’s not the case. She said the bill merely amends state code relating to the disposition of separate or marital property.
While the bill doesn’t specify what happens to unused embryos once they are awarded to one party or the other, Barto said that would be left up to the person awarded the embryos. “They can pay for storage, donate, or discard as they will have full authority with the award,” she said.
Torres, meanwhile, continues to fight for the frozen embryos. She is appealing the judge’s decision.
Holding back tears, she said in a recent state Senate committee hearing that she’s now in menopause. Her window to produce a child from the frozen embryos is closing.