Arizona Supreme Court to review decision over use of frozen embryos when couples split, a case with no clear rules, says Audra Petrolle, Rose Law Group family lawyer

By Howard Fischer | Capitol Media Services via Arizona Daily Star

The state’s high court has agreed to wade into the controversial issue of the rights of parties in a divorce to decide what happens to eggs they had fertilized — and whether one can be forced to become a parent against his or her will.

In a brief order Wednesday, the justices of the Arizona Supreme Court said they want to review whether the Court of Appeals properly interpreted a legal agreement about who gets to use the embryos when the now formerly married spouses cannot agree.

But the bigger issue could be whether the justices will direct courts handling such cases to balance the competing interests of the parties in deciding whether to let an embryo be implanted or ordering it donated to someone else — or even destroyed. That would put trial judges in the position of having to consider whether the argument of one person to bring the embryos to life can be outweighed by the argument of the other who does not want that.


“This is an inherently complex and emotionally charged question. Can we really set a bright line where we effectively force someone who does not want to be a parent to become a parent? At the same time, is it really fair to deprive the prospective parent who wants to bring life into this world and has taken every step other than actual transfer of the embryo into the womb to bring that human into this world?

I don’t imagine that there is a bright line rule here. The best defense here is likely to enter into an agreement laying out each party’s rights in the event of a dissolution of marriage or termination of a relationship similar to what the parties tried to do in this case. With that said, however, I would not necessarily recommend that the decision of whether to bring a human life into this world be left to the sound discretion of the court. Instead, the agreement should lay out clear expectations around the end result for any scenario to avoid confusion and litigation later.”

~Audra Petrolle

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