When A Couple Fights Over Frozen Embryos, A New Law Says Who Should Win: Whoever Wants To Make A Baby

The first-of-its-kind law on frozen embryos was pushed by anti-abortion advocates in Arizona, but others worry about government overreach. “It’s an incredible intrusion into the bedroom and the private life of families,” one legal expert said.

Arizona has become the first state in the US to pass a law mandating what happens to frozen embryos after couples get divorced.

When there’s a dispute over whether to destroy the cells, the law says, the frozen embryos must go to the person who wants them “to develop to birth.”

The landmark legislation, supported by anti-abortion groups and signed into law by Gov. Doug Ducey last week, is at the vanguard of the nationwide abortion debate. While some conservatives are cheering the new law as further support for the notion of “personhood,” others argue that it is a dangerous overreach of government.

“It’s an incredible intrusion into the bedroom and the private life of families,” said Gary Marchant, a law professor at Arizona State University who focuses on bioethics. “I’ve never seen anything like this.”

More than a million frozen embryos are stored in fertility clinic freezers across the US, the result of a steep rise in couples who have used in vitro fertilization (IVF) over the last several decades.

Most fertility clinics use contracts that force couples to decide ahead of time what should happen to the embryos in the event of a divorce, and most states have opted in favor of upholding the contracts.

But a small number of cases — a couple dozen, roughly — have been fought in court, including Sofía Vergara’s ongoing legal fight with her ex-fiancé Nick Loeb.

In 2016, lawmakers in Missouri wrote legislation that would have forbid the destruction of embryos in divorce proceedings. The bill got the support of anti-abortion groups but ultimately failed to become law.

The new Arizona law was spurred in part by a state court case last year. Before going through cancer treatment in 2014, Ruby Torres and her then-fiancé created seven embryos through IVF. But when her husband filed for divorce in 2016, Torres still wanted the right to use the embryos, which she argued could be her last chance at having biological children.

Torres’ ex-husband fought against it, and the family court judge, Ronee Korbin Steiner, eventually ruled in his favor. Steiner argued that the terms of the contract the couple signed at the fertility clinic should be upheld, and that the "right not to be compelled to be a parent outweighs wife's rights to procreate.” Torres is still fighting her husband in the Arizona court of appeals for the embryos they created.

The new law was sponsored by Republican Sen. Nancy Barto of Phoenix, and supported by the conservative Center for Arizona Policy, part of the anti-abortion Family Research Council. “I applaud the Governor for his bold actions in protecting parental rights,” Cathi Herrod, president of CAP, said in a statement after Ducey signed the bill last week.

The law stipulates that in cases where embryos are turned into babies, the parent who was not in favor of their use would have “no parental responsibilities” and would not have to pay child support.

In a strongly worded letter of opposition, the National Infertility Association argued that embryos should not be granted personhood.

“Up to this day and in all 50 states, child custody laws have applied to children who were born and in existence,” the group wrote. “But this legislation would cause Arizona to depart from the rest of the country by making ‘in vitro human embryos’ — frozen and the size of a single grain of table-salt — subject to new laws that draw from child custody standards.”

Although the law itself does not use the language of personhood, Barto has a history of supporting bills restricting abortion, banning fetal tissue research, and defunding Planned Parenthood.

Marchant argued that the “property versus person” debate on frozen embryos had grown largely obsolete in courtrooms, and that people on both sides generally agree that embryos are not like property.

“I think most states recognize that this is a future human even if it’s not an existing person,” Marchant said. “It’s not just a car or a dining table or a piece of furniture. It’s something that requires more respect than that and needs to be dealt with with sensitivity, regardless of your view on whether this is a person.”

Marchant also warned, however, that similar bills might be cropping up in other states soon. “That’s sort of been the trend with these sorts of bills,” he said. “ I think this will be similar. I’d bet on it.”


Nick Loeb is Sofía Vergara's ex-fiancé. Due to a typo, a previous version of this post implied they were still engaged.

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