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AZAPP Blog Your resource for news and analysis of cases in Arizona's appellate courts.

Terrell v. Torres - 1/23/2020

The Arizona Supreme Court holds that a couple’s election on an in vitro fertilization consent agreement requires that their cryogenically preserved embryos be donated rather than used by one partner without the express consent of the other.


A couple decided to engage in IVF-related services when the then-girlfriend was diagnosed with cancer, the treatment of which could reduce her reproductive function.  Both partners were the biological gamete donors and both partners signed an agreement regarding how the embryos would be disposed of in the event of separation, death, or divorce.  Both partners elected to have the embryos disposed of by a court order and/or settlement agreement, wherein the order would state whether the embryos should be used by one of the partners to achieve pregnancy or be donated.

The couple eventually married, and when they divorced one wished to use the embryos herself while the other wished for the embryos to be donated.

The family court interpreted the election in the agreement as allowing the court to make the ultimate decision and consequently balanced the interests of the parties, ruling in favor of the partner who wished to donate the embryos.  The appellate court also engaged in a balancing test but reversed the family court and ruled in favor of the partner who wished to use the embryos herself.

The Supreme Court explained that although the area of frozen embryos is both sensitive and evolving, this case presented purely an issue of contract interpretation.  First, the Court held that contracts addressing the disposition of embryos are generally valid, binding, and enforceable.  Then, the Court emphasized the importance of reading contract provisions in context of the entire agreement.  It held that the agreement repeatedly stated that embryos could not be used to produce a pregnancy without the express consent of the other party.  By contrast, the agreement allowed a court to order donation even without both parties’ consent.  Because one partner would not consent to the pregnancy of the other, the Court held that the only available option was donation.

Justice Timmer authored the unanimous decision.  Chief Justice Brutinel and Justice Beene were recused from the matter.  Consistent with recent practice, the Court did not appoint other judges to fill the vacant seats, but instead sat as a five-member court.

Disclosure: Osborn Maledon attorneys were involved with this case.

Posted by: Payslie M. Bowman 

Posted On: 2/6/2020