When Ruby Torres found out she had cancer in 2014, she knew the chemo and radiation treatments could destroy her fertility — so she didn’t take any chances. The Phoenix woman quickly married her fiancé and prepared to undergo in-vitro fertilization (IVF), freezing several embryos that the pair could later use.
Torres survived her treatment. Her marriage didn’t. And her ex-husband, who filed for divorce in 2016, no longer wanted to use the still-frozen embryos.
After a judge ruled in 2017 that Torres couldn’t use the embryos to become pregnant against her ex-husband’s wishes, anti-abortion groups pushed the Arizona Legislature to address the matter, framing it as a parental rights issue. Earlier this month, their efforts paid off: Republican Gov. Doug Ducey signed into law a bill mandating that in the event of a divorce, the spouse who "intends to allow the embryos to develop to birth” gets to keep them. If both spouses want the cells, then the judge must sort out their custody battle so that the embryos have “the best chance” to be born.
It’s the first law in the nation to dictate what happens to frozen embryos after a couple splits up. And, unsurprisingly, it’s already enraging supporters of abortion rights, who say the law is nothing more than a sneaky attempt to define embryos as “people” and set up a challenge to abortion.
“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, a professional organization for reproductive healthcare specialists. “This law and the people behind it are very clearly anti-reproductive medicine and anti-reproductive freedom.”
The Center for American Policy, a conservative anti-abortion group, especially championed the measure. In a statement after the Arizona House of Representatives passed the bill, the group’s president Cathi Herrod declared, “A spouse should not lose rights to his or her in-vitro embryos in a divorce dispute simply because the other spouse no longer wants to be a parent.”
At least 1 million babies have now been born in the United States thanks to assisted-reproductive techniques, which include IVF. In 2015 alone, IVF led to live births for nearly 68,000 women. But Michele Goodwin, the director of the Center for Biotechnology and Global Health Policy for the University of California, Irvine, said that when it comes to legislation and regulation of assisted-reproductive techniques, the United States is still practically the Wild West.
“We’re catching up to something that is a technology that has outpaced law,” Goodwin explained. People undergoing IVF typically create more embryos than they actually want in order to ensure that at least one will result in a pregnancy. But no federal law governs the fate of the embryos they don’t use — and so more than 620,000 frozen embryos are now languishing, frozen in liquid-nitrogen tanks, across the United States, according to the Department of Health and Human Services.
“People don’t want to destroy them, and that’s not because they think they’re babies,” said George Annas, the director of the Center for Health Law, Ethics & Human Rights at the Boston University School of Public Health. Rather, they resist destroying them because the embryos often represent “this long, usually complicated, and arduous procedure that they went through in order to create these embryos.”
Only about a dozen court battles like Torres’ have surfaced over the past two decades, Annas said. Prospective parents typically undergoing IVF typically negotiate complex private contracts that should, Tipton said, explicitly outline for everything that could go wrong, including a break-up.
But if people change their minds, or if those contracts aren’t ironclad, the resulting court cases can be explosive. TV actress Sofía Vergara, for example, has spent years fighting in court to stop her ex-fiancé Nick Loeb from using their frozen embryos, leading to splashy tabloid articles and a Loeb-penned New York Times editorial.
Judges have so far seemed split on these cases: While most have sided with the person who doesn’t want to become a parent, a few have ruled that somebody’s wish to try for a child trumps that concern.
Jalesia “Jasha” McQueen, a Missouri lawyer, knows just how tough these cases can be firsthand. After she split with her ex-husband in 2010, McQueen wanted to get pregnant using a pair of embryos they’d created. But her ex refused to have more children with her, and a judge ultimately ruled in his favor.
That prompted McQueen to found Embryo Defense, a group that aims to educate people about custody battles over embryos. McQueen supports the Arizona law, and she wants frozen embryos to be more tightly regulated.
“You’re talking about time, money, pain, emotion,” McQueen said, pointing out that IVF can easily cost tens of thousands of dollars. “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.”
Plus, she adds, the Arizona law releases the person who doesn’t want to have a baby from both parental rights and responsibilities — meaning they’re not on the hook for child support. (Whether it’s quite so easy to sever the emotional relationship between a parent and a child, however, is a trickier question.)
Goodwin said Arizona’s law breaks with decades, if not centuries, of government reluctance to wade into people’s individual reproductive choices. Ultimately, she said, it violates one crucial constitutional tenet: You cannot force people to procreate.
“It invites people becoming parents against their will, which is the part that’s unconstitutional, unethical, and highly problematic,” Goodwin said. “It’s deeply politicized.”
Tipton wouldn’t say whether the American Society for Reproductive Medicine plans to sue over the law. “There are discussions going on with a number of groups and individuals,” he said. “I feel confident somebody’s going to be bring a court challenge — we just don’t know who the litigants and other participants will be yet.”
McQueen said that she hasn’t heard from lawmakers in other states who are interested in replicating Arizona’s law, but she plans to keep up her effort to enact such a measure in her home state of Missouri. State lawmakers there introduced bills in 2016 and 2017 that would have guaranteed that, in custody battles over embryos’ future, the cells would go to the person who “intends to develop the in vitro human embryo to birth.” Both failed.
“Look, we are creating embryos at a phenomenal rate in this country, and that’s a lot of responsibility to those embryos,” McQueen said. “It’s leading up into nowhere.”