Adopting a “contract approach” for evaluating agreements regarding disposition of cryogenically preserved embryos, the Arizona Court of Appeals Division One rules that an ex-wife can implant embryos over objection of her ex-husband.

A woman diagnosed with cancer chose to create and preserve embryos using her eggs and sperm donated by her boyfriend before undergoing chemotherapy.  The couple executed a form contract with the fertility clinic.  The contract specified that any embryos would be the parties’ joint property and stated that “[e]mbryos cannot be used to produce pregnancy against the wishes of the other partner.” 

The contract also asked the parties to specify how it should dispose of the embryos if the couple separated or divorced.  In one section, the form agreement gave three options:  (1) discard, (2) donate, or (3) use by one partner with the contemporaneous permission of the other.  The couple chose option #3.  Another section listed two alternatives in the event of divorce or separation:  (1) present the clinic with a court decree or settlement agreement directing it to either allow one partner to use the embryos or donate them to another couple, or (2) destroy the embryos.  The couple chose option #1.

The IVF treatment resulted in seven cryogenically preserved embryos.  In the meantime, the couple married.  They divorced two years later.

During the divorce proceedings, the couple could not agree on what to do with the seven embryos.  The ex-wife wanted to implant the embryos to achieve pregnancy; the ex-husband objected.  Finding the IVF contract ambiguous and no Arizona law on point, the family court considered the interpretive approaches used by other jurisdictions in the assisted reproduction context.  It adopted a “balancing approach,” under which it weighed interests of both people.  The family court concluded that the ex-husband’s right not to be forced to be a parent outweighed the ex-wife’s right to procreate and her wish to have a biological child.  It ordered that the embryos be donated to a third party.

The ex-wife appealed.  The Court of Appeals held that courts should apply a contract approach to reproductive agreements, although it agreed with the family court that the balancing approach was appropriate if a contract is nonexistent or ambiguous.

Turning to the text of the parties’ IVF contract, the Court found that it unambiguously left determination of the proper disposition in cases of divorce or separation to the court.  It thus applied the balancing approach to determine the appropriate disposition of the seven embryos at issue.  In contrast to the family court, however, it concluded that the ex-wife’s interests outweighed the ex-husband’s interests.  The Court, therefore, vacated the family court order and remanded with instructions to award the embryos to the ex-wife.

Judge Cruz dissented.  She disagreed with the majority’s conclusion that the contract language gave the court discretion to award the embryos to one partner for implantation over the objection of the other partner.  Rather, the dissent found that the contract clearly prohibits implantation without the consent of the other partner.  Further, even if the contract gave the court discretion, the majority improperly reweighed the evidence under the balancing approach instead of deferring to the family court’s factual findings.

Judge Campbell wrote for the Court, joined by Judge Beene.  Judge Cruz dissented.