438 P.3d 681
Ariz. Ct. App.2019Background
- Torres underwent IVF using her eggs and Terrell’s sperm after a cancer diagnosis likely to render her infertile; they signed an IVF Agreement that treated resulting embryos as joint property and set disposition options.
- The Agreement’s Disposition Provision listed three alternatives (discard, donate to another couple, or use with contemporaneous permission) and a general “Note” stating embryos cannot be used to create a pregnancy without the express written consent of both partners in events like separation or divorce.
- In section 10(H) (Divorce/Dissolution) the parties initialed the option that a court decree or settlement would be presented to the clinic directing use by one of them or donation to another couple—i.e., delegating disposition to a court if they disagreed.
- After marriage and creation of seven embryos, the couple separated and Terrell objected to Torres using the embryos; the family court applied a balancing approach and ordered donation to a third party, finding Terrell’s interest in avoiding parenthood outweighed Torres’ interest in procreation.
- The Arizona Court of Appeals adopted the contract approach as governing law, held the IVF Agreement authorized the court to decide disposition under 10(H), applied the balancing framework, concluded Torres’ interest outweighed Terrell’s, vacated the trial court’s order, and remanded with instructions to award the embryos to Torres; it also remanded attorney-fee issues.
Issues
| Issue | Plaintiff's Argument (Torres) | Defendant's Argument (Terrell) | Held |
|---|---|---|---|
| Governing framework for embryo disputes | Enforce parties’ IVF Agreement or, where parties delegated, apply balancing test | IVF Agreement bars use without both parties’ contemporaneous written consent (the Note) | Arizona adopts the contract approach; where the agreement delegates to a court, apply the balancing approach |
| Effect of Agreement language (Note vs. 10(H)) | 10(H) shows parties gave the court authority to award embryos to one party | The Note unambiguously forbids use without express written consent, so court cannot award embryos to one party | Court reads Agreement as a whole: parties gave written consent to let a court decide under 10(H); specific provision (10(H)) controls the general Note in this context |
| Balancing of interests (award to one party vs. compel donation) | Torres: near-zero chance to achieve biological parenthood without these embryos; other options (donation/adoption) are unlikely or speculative | Terrell: strong interest in avoiding parenthood and possible future financial/support obligations; consent was not given | Applying Davis balancing, Torres’ inability to achieve parenthood otherwise and her reliance on IVF outweigh Terrell’s interest in avoiding parenthood; embryos awarded to Torres |
| Attorney fees on remand | Torres sought fees under A.R.S. §25-324(A) arguing she was not unreasonable | Trial court denied fees citing both parties acted unreasonably; Torres contests that finding | Appeals court held trial court abused discretion in finding Torres unreasonable on the record and remanded for reconsideration consistent with the opinion |
Key Cases Cited
- Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (articulates balancing framework where no enforceable agreement or court is asked to decide)
- Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998) (endorse contract approach: enforce progenitors’ disposition agreements)
- J.B. v. M.B., 783 A.2d 707 (N.J. 2001) (enforces IVF agreements while allowing change of mind up to use or destruction)
- Litowitz v. Litowitz, 48 P.3d 261 (Wash. 2002) (recognizes and enforces disposition agreements as primary method)
- Szafranski v. Dunston, 993 N.E.2d 502 (Ill. App. Ct. 2013) (discusses contract approach and balancing, emphasizing autonomy and predictability)
- Witten v. Iowa Dist. Ct., 672 N.W.2d 768 (Iowa 2003) (adopts contemporaneous mutual consent approach and maintains status quo if no agreement)