Mature oocyte. Light micrograph of a human secondary oocyte (mature egg) to be used in in vitro fertilization (IVF). At center is the rounded egg. It has undergone a meiotic cell division to produce this secondary oocyte. The egg is surrounded by the zona
Image via CC Studio/Science Source

Planned Parenthood

In a divorce, who gets custody of the embryos?

This article appears in VICE Magazine's Means of Production issue. Conceived of pre-COVID-19 and constructed during it, it explores the organization and ownership of our world.

In the summer of 2014, a newly minted Phoenix lawyer named Ruby Torres had a whirlwind few weeks that would end up determining the course of her life. After being diagnosed with bilateral breast cancer in the late spring, Torres, then 33, met with a fertility specialist in early July to see if she could preserve her ability to have children before chemotherapy-induced menopause. She was told she had just one chance—just one fertility cycle—to extract eggs ahead of her urgently needed treatment.


At the time, egg freezing was an iffy science; even after the advent of a flash-freezing process called vitrification, many unfertilized frozen eggs never survived the thawing process. Torres was advised to freeze embryos instead. Which meant she needed to find sperm. Immediately.

She had been dating a man named John Terrell for several years. They had a “good relationship”—at least in her eyes. Terrell initially declined to be Torres’ sperm donor (jacking off into a cup at a doctor’s office didn’t appeal to him, she recalled), but he eventually agreed after he learned that Torres’ ex-boyfriend had volunteered first. On a Friday in July, they signed a contract at a fertility clinic, which said that neither of them could use the embryos without the other’s consent. At lunch a few days later, they made the “rash decision” to get married. At the Bloom Reproductive Institute in Scottsdale soon after, Torres’ eggs were extracted and they made seven embryos together.

“I was happy that he had changed his mind,” Torres told me on the phone in February. “He was the man I was in love with. He was the one I wanted to be with and wanted to be the father of my children.”

Fast-forward two years later: The couple’s relationship had collapsed. The split was not amicable. According to Torres, the tail end was marred by infidelity and domestic violence (a charge that Terrell denies). Even though she remembers Terrell verbally giving her the embryos, the fate of their genetic material became the center of their divorce trial in family court. The judge eventually ruled against Torres, deciding that they must be donated to a third party. When Torres appealed, the court came down in her favor, ruling that her right to procreate outweighed her ex-husband’s desire not to. Then Terrell appealed the decision to the Arizona Supreme Court, which reversed the appeals court decision in late January: Torres cannot use the embryos without the consent of her ex-husband, and must donate them instead. Her hopes of having a biological child were permanently crushed.


Torres sees this as a simple issue, the right to have a baby: By denying her ownership of her embryos, she said, “you are taking my child from me.”

That’s one way of looking at it. Another way is through Terrell’s eyes: He believes his right not to become a parent trumps her desire to become one. His relationship with Torres was never serious, he claimed; they only dated “on and off.” According to family court testimony and a March phone call I had with his lead counsel at the Arizona Supreme Court, Eric M. Fraser, he married Torres to give her health insurance. He provided the sperm not because he saw a future with her, but because it was the “honorable thing,” especially since her cancer diagnosis seemed like “basically a death sentence.”

By the time their relationship ended, Fraser told me, Terrell was sure he did not want to create a baby with Torres. There was “no realistic way” he could have stayed out of that child’s life; they had overlapping friends and lived in a small community where everyone knew each other. Plus, the courts could not waive child support responsibility. No matter how many times Torres requested a preemptive child support waiver for Terrell in the event that she used the embryos—and she did request that—there was no way he could be off the hook for payments in case she died or got sick or went to jail. Unlike sperm donation or many adoptions, this wasn’t anonymous. Everyone would know he was the father.


According to estimates by reproductive endocrinologists, there may be about a million frozen embryos in the United States. There have been court battles over the fate of frozen embryos since the 1990s. But if the last few years are any indication, many more will become mired in divorce court. Torres and Terrell’s case is one of a handful of similar ones that have continued to pop up around the country, all involving the fate of embryos created by a couple who were once together and now are not. Many of them hinge on whether the right to be a parent is more important than the right not to be. There have been judges in Connecticut, Massachusetts, Tennessee, New Jersey, and California who were swayed by arguments similar to Fraser’s, and therefore ruled against the spouse seeking to use the embryos. Most publicly, last October a judge in Louisiana dismissed a lawsuit filed against the actor Sofia Vergara by her ex-fiancé, Nick Loeb, for possession of their embryos. These cases sometimes go the other way: Courts in Illinois and Pennsylvania awarded embryos to women because they had no other chance of having a biological child. Legal experts suspect that one of these embryo cases will eventually reach the U.S. Supreme Court, having huge implications for abortion, stem cell research, and in vitro fertilization.

Some courts have avoided weighing in on ethical questions altogether, simply citing contracts the couple signed at the fertility clinic before anyone blended their genetic material. And most judges typically sidestep a decision on whether embryos are property or living things. In the context of divorce, should embryos be treated like assets—or beings over which one person gets custody? Most judges have agreed so far that they lie in a nebulous place in between.


Regardless, anti-abortion advocates have seized on these cases as opportunities to establish personhood for embryos. In early 2018, while Torres and Terrell’s case was still weaving its way through the courts, a coalition of anti-abortion activists successfully pushed for a law, passed through Arizona’s legislature, that mandated the embryos be granted to the person who wanted to give them life—not only overruling existing contracts, but also reinterpreting established embryonic science.

The embryo issue can look like a fun-house mirror version of the abortion debate. The womb has always been central to my understanding of abortion rights; the embryo’s dependence on another human’s flesh and blood is the reason why carrying a pregnancy seems to me an act of generosity and should only be continued willingly. It’s also the reason why I believe it’s solely the womb owner’s choice. But when nobody’s womb is at stake, that kind of logic becomes a lot harder. Embryos created in vitro inhabit a liminal space where they’re not dependent on a body to exist as they are. Frozen in time, they’re a potential for a life, but cannot thrive and develop until they are actively put inside a body.

The debate over frozen embryos blends two improbable worlds, one of fact-based bioethics, and the other of love and partnership, where emotions rage and rationality is in short supply. Torres was my first interview for this piece, and even over the phone, her harrowing story wrenched my guts. My instinctual indignation kicked in as a feminist who has always defended a woman’s right to make her own reproductive decisions. But as I delved deeper into my reporting, it became clear that my values were about to be tested.


The creation of in vitro embryos is, by definition, a deliberate process, one that precedes pregnancy and therefore neutralizes the womb owner’s sole privilege, which I’d always granted automatically. Until embryos are placed in a uterus, both people who created them must have a right to decide what happens to them. Despite my years of reporting on reproductive rights, there was one question I hadn’t truly considered: If people with uteruses should be protected against compulsory birth, shouldn’t we all be protected from compulsory genetic parenthood, if the embryo in question is not yet inside a body?

light micrograph of human oocyte from failed IVF attempt

Image via M.I. Walker/Science Source

“When you have ended a relationship with someone, you want a clean break,” Eric M. Fraser, John Terrell’s Arizona Supreme Court lawyer, explained to me. The idea of starting a family with an ex against your will is “untenable. Nobody would want that.”

Attorneys often employ this logic to defend clients who don’t want the embryos they helped create to become children. They’ll cite the potential of their client being saddled with child support, but mostly they’ll draw attention to the pain and burden of knowing there’s a child out there that was born against their express wishes. In a 2015 California case between Mimi Lee and Stephen Findley, in which Lee wanted to use the embryos, Findley’s attorney argued that his client didn’t want to sign up for “18 years of interaction” with his ex-wife. (The court ruled that the embryos should be destroyed.) In the 2018 case of Drake and Mandy Rooks in Colorado, the Academy of Adoption and Assisted Reproduction Attorneys wrote an amicus brief in support of the husband who objected to the use of his embryos. “The constitutional protection against compulsory parenthood is in most situations greater than any procreative interest in pre-embryos,” attorneys Christopher Jackson and Seth Grob wrote.


A few cases argue the opposite: that the chance to be a parent is more important, particularly if this is the only chance. In a 2012 Pennsylvania case, the trial court’s wording was almost perfectly reversed: “Because Wife cannot achieve genetic parenthood otherwise,” it stated, “we conclude that Wife’s interest in biological procreation through the use of these pre-embryos outweighs Husband’s professed interest against procreation.”

Some attorneys have argued that creating the embryos in the first place was at least a tentative act of consent to be a parent. Attorney Katayoun A. Donnelly, who represented Mandy Rooks, told the Washington Post that Drake Rooks “is saying he has a constitutional right not to be a parent, but he forgets it is past the point of conception,” Donnelly said. While nobody could force a man to donate sperm for the sake of pregnancy, “he has already agreed to use his sperm with the eggs. So we are in this unknown territory.” Lawyers like Fraser use flipped logic: When a couple creates an embryo “the good old fashioned way,” he told me, they’re both operating under a known risk of an immediate pregnancy, even if the conception is accidental. But when you freeze embryos, you’re explicitly saying, “We don’t want children right now.”

In other words, the outcome of this sort of case largely depends on what judge you get, which is precisely why Fraser believes the courts should stay out of these issues altogether. “It creates unpredictability,” he said. “These are private emotional decisions and they’re decisions people should be making thoughtfully at the front end.”


Many of these cases arise because the contract wording is vague (in the 2012 Pennsylvania case in which the ex-wife was granted use of the embryos, the couple didn’t even fill out the entire contract). But nowadays, the vast majority of fertility clinics require both parties to sign comprehensive agreements outlining very specific scenarios: What happens if one of you dies, or you get divorced, or you stop paying your cryostorage bills? Do you want to donate them? Destroy them? Allow the other person to use them with somebody else?

These are decisions couples should make before freezing, “when they can be more cool, collected, and rational about it,” Fraser said, “rather than after a relationship has broken down.”

Nobody has a crystal ball, but I came to see the advantage of a unassailable contract as not only logistical but philosophical: It enshrines and reinforces the right to choose. In fact, it’s a more full expression of the concept; it’s a chance for each person to determine what happens with their genetic material. Not the courts. Not the law. Sean Tipton, a spokesperson for the American Society for Reproductive Medicine (which supported Terrell and opposed the Arizona law), believes a good contract can protect reproductive freedom without the government’s involvement. “Our concern is that individual patients should be able to make a decision about what they’re going to do with their own reproductive tissue,” he said.


Even Torres, who believes that her contract’s nebulous, contradictory language doomed her court case, agrees that a clear agreement can save a lot of pain. “Look at your contract and have it in writing,” she advised, because, as they say, nobody plans for their marriage to end. “Get a contract even [in addition to the one required by] the IVF clinic. Be as specific as possible and just understand that the fertility clinic’s contracts are not as clean and clear as they should be, so you probably should go to an attorney elsewhere.”

The embryo issue can look like a fun-house mirror version of the abortion debate.

For many judges, the existence of an enforceable contract has been a saving grace. In a Connecticut case in October 2019 that sided with ex-wife Jessica Bilbao, who wanted the embryos destroyed, the court said questions about cases like these with missing or confusing written agreements would be left for “another day.” But for attorneys and anti-abortion advocates, weak or vague contracts drawn up by fertility clinics present an opportunity.

Joseph P. Secola, who represented ex-husband Timothy Goodwin in the Connecticut case, scoffed at the typical contract issued by a fertility clinic. “When you’re talking about a basic fill-in-the-box contract, there’s no thinking in that,” he said. It’s not a contract to protect either donor, he added, but to protect the clinic. Besides, Secola explained, family law contracts are often “not binding on people the way they are in the commercial context.” When it comes to things like prenuptial agreements, “judges have a lot more discretion to get involved” if circumstances have changed. And the fertility clinic contracts often don’t even have outside lawyers vetting them.


Bilbao and Goodwin had implanted one of the embryos during their relationship, which resulted in their only child. Goodwin had originally agreed to destroy the rest of the embryos if both parties didn’t use them together, but said when they filed for divorce that he had changed his mind (though not the contract) after his daughter was born. (Jessica Bilbao, through her attorney, declined a request for comment from VICE.) Despite the written contract agreeing to discard the embryos, Secola bemoaned having to “side with the death solution.” He argued on behalf of Goodwin that “the life has already been created by both parties… Why can’t the court err on the side of life?”

Secola’s arguments did not prevail in Connecticut, but there was one place his logic found a sympathetic ear: in the Arizona legislature.

Egg storage for IVF. Tube of eggs in cryogenic (frozen) storage

Image via SCIENCE PHOTO LIBRARY/Science Source

Maricopa County Superior Court judge Ronee Korbin Steiner, who was appointed by an anti-abortion governor, had a rather nuanced take on the status of embryos. She remarked during the first decision in Terrell v. Torres family court that embryos “are not people, but they are special because they’re somewhere between a bunch of cells and the potential of being a person, so I do respect it.”

But outside of the courtroom, the conservative advocacy group Center for Arizona Policy (CAP) and several anti-abortion state senators set out to nudge the definition of embryo more toward the designation of “person.” This concept is the bedrock of the Arizona law inspired by Ruby Torres’ case, which requires courts to override contracts and give embryos to the spouse who “intends to allow the embryos to develop to birth.” Signed into law on April 3, 2018, it offered a resolution to the child support issue by making sure that the spouse who didn’t want the embryos would not be liable. It was sponsored by Republican Rep. Nancy Barto, then a state senator, who introduced the bill by saying, “Most people believe that frozen embryos should have a chance at life.”


Many legal experts believe the law is unenforceable, given that courts have honored fertility clinics’ contracts before. But the law immediately set off alarm bells among abortion rights advocates who are all too familiar with “personhood” arguments making their way through courts.

Before lawmakers voted on the bill, Barbara Collura, the president and CEO of the infertility association RESOLVE, wrote in a letter on behalf of the organization that the law “inserts the AZ legislature into the extremely personal decision about how a couple builds their family.” She told me later on the phone that she recognized “a methodology of sort of nibbling around the edges” of abortion rights, “versus coming right out with legislation banning something.” The activists will say it has nothing do with abortion, she said, but it does have to do with personhood, which would upend the debate over whether embryos—in or out of uteruses—have human rights. “If we go down this potentially slippery slope of starting to say that embryos are people, where does it end?” she asked. “It doesn’t end, for us and our community, in a good place.”

Collura and others also worried about the implications for IVF, an increasingly common procedure. Tipton, who also spoke out against the legislation, said that “the anti-choice people are not looking to throw fertility patients under the bus, but they’re perfectly willing to do it if it gets them closer to their goal of stopping abortion.” Tipton said they were “mostly concerned with theological definitions of when life begins… We think people can make their own decisions about that.”

Neither Nancy Barto nor CAP responded to multiple requests for comment. The Thomas More Society, an anti-abortion public-interest law firm and a supporter of the Arizona law that assists similar cases across the country, has argued in amicus briefs that a person who creates an embryo through in vitro fertilization has “voluntarily exercised [their] procreational rights” and that the resulting embryos have an “unalienable” right to life that “cannot be legally terminated at the whim of others.”

“We now know that embryos are human organisms,” Rita Gitchell, special counsel at the Thomas More Society, told me. “Based on published research, you can tell very early on the difference between the inner cell mass and the components that become the placenta and cord and the germ line for the next generation… The fact is when sperm and egg come together, it makes a life.”

Many biologists beg to differ on that last “fact.”

“The science is clear: Early embryos are only slightly organized bunches of cells, without significant gene expression,” Jane Maienschein, a professor specializing in embryo research and the director of the Center for Biology and Society at Arizona State University, wrote in an email. “They are alive in the sense that they have the capacity to continue living. But they are certainly not ‘persons’ in any traditional senses of that word. They have no neural or moral capacities for a long time yet.”

Torres has little interest in this argument. She appreciated the support of the Republican legislators (even if the law can’t retroactively apply to her), but said, “honestly, we’re not in the same political party.” And when it comes to embryonic personhood, she doesn’t agree with it. “I do want my embryos to have rights, but I don’t know that I want them to be seen as a person, because they’re not,” she said. “There’s no science to prove that they could be viable outside of the womb at this point.”

The way she sees it is the way many women seeking abortion feel about the personhood debate: “What about me, a person that’s already here and is fighting for this?” she said.

Sometime in the future, this debate could be moot, with egg-freezing technology improving and more heartbreaking court cases serving as ominous warnings. Collura already sees doctors changing their tune when it comes to cancer patients. “The gold standard used to be, you want to try and freeze embryos,” she said. Now doctors are recommending the freezing of at least some unfertilized eggs, which “avoids all of this.”

But the arc of frozen embryos can be long, and there’s often a lag between preserving them and deciding their fate. It’s impossible to predict the future or anticipate a downturn, especially when ensconced in an opaque bubble of a loving, committed relationship. Even with a clear, specific, notarized agreement, anyone can change their mind once they’re forced to comply with an ironclad contract’s promises in a completely different set of circumstances. Because of the plainly emotional experience of having a child and planning a family, the only thing that will protect (to paraphrase Torres) “the people that are already here” is ultimately a fantasy: an abundance of foresight and a lack of sentimentality.

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