In June 2014, Phoenix-based lawyer Ruby Torres was diagnosed with an aggressive form of breast cancer. She learned she’d quickly have to undergo chemotherapy, and that the treatment might leave her infertile.
But Torres wanted to have kids. So in the weeks before beginning her chemo, the then 33-year-old decided to preserve her reproductive cells. She briefly considered freezing just her eggs, but decided instead to go through in vitro fertilization (IVF) — fertilizing her eggs with the sperm of her boyfriend, John Terrell, and then freezing the resulting embryos. (Research shows that frozen embryos have better outcomes than eggs when thawed.)
A month after her diagnosis, the couple got married. And a week after that, the fertility clinic successfully froze seven of their embryos.
But by 2016, Terrell wanted out of the marriage. In their divorce proceedings, Torres asked to keep the embryos, her last chance at having biological children. Terrell, however, wanted them destroyed.
The judge decided that the “right not to be compelled to be a parent outweighs [a] wife’s rights to procreate,” and ruled that the couple should follow the terms they’d agreed upon in the contract signed at the fertility clinic: donating the embryos to other infertile couples.
“So there will be a child out there that is biologically mine, and I just will never be able to see them or have any contact with them,” Ruby told BuzzFeed News. “I think that’s what hurts the most — knowing that somebody else gets that joy.”
Torres has appealed that judge’s ruling, and the embryos’ fates are now waiting on a decision in appellate court. Roughly a dozen such cases have cropped up across the US, but Torres’ is notable for inspiring controversial legislation in Arizona. The new law says that in these kinds of disputes, the cells should go to whichever party wants to use them to make a baby.
It’s the very first frozen embryo law in the US, and some people are worried that it could set a dangerous legal precedent: defining these cells as “life” in order to chip away at abortion rights. That fight is the subject of a new episode of the Netflix docuseries Follow This.
Forty years ago, scientists in the UK showed the promise of in vitro fertilization for the first time with the birth of the first “test tube baby,” Louise Brown.
Scientists have refined the technique over the years by stimulating women with hormones to release multiple eggs, instead of the single egg that is typically released every menstrual cycle. That opened the door to fertilizing multiple eggs, storing the resulting embryos in tanks of liquid nitrogen, and using them later. In 1984, the first baby born from a frozen embryo was born in Australia.
Now, with no regulations overseeing the practice of IVF in the US, more than a million embryos are frozen in tanks across the country. Fights over what to do with the frozen cells have led some fertility doctors to ask whether limits should be set on how many are made or how long they’re stored.
“I would really prefer we stop freezing extra embryos when we can,” said Nicole Noyes, director of fertility preservation at New York University’s Langone Fertility Center.
“Embryos have more disposition issues — ethically, religiously, couples arguing over them,” Noyes added. “If a woman is married, if she has eggs frozen then they are her property, and sperm is his property. Once you put them together they’re joint property — and we know how joint property goes when things don’t work out.”
As a result of Torres’ case, Republican state lawmakers in Arizona passed the controversial law favoring that these cells be implanted into a woman and brought to term. The law also stipulates that in these cases, the person who doesn’t want the embryos would have “no parental responsibilities” and would not have to pay child support. The bill was supported by the conservative Center for Arizona Policy, part of the anti-abortion Family Research Council.
“Most of the groups that have inserted themselves into this conversation are folks who have been doing anti-choice work,” said Kimberly Mutcherson, vice dean at Rutgers Law School. “They are very clear that the embryo cases are part of the continuum of abortion in the United States, and they’re using those cases as a way to get at their ultimate outcome, which is for women not to be able to access abortion legally.”
The new law doesn’t retroactively apply to Torres’ case. And although she applauds the law for favoring people in her position who have no other way to have kids, she wants to steer clear of calling all frozen embryos “life.”
“Rationally, legally, I do understand that they are not life,” Torres said. “It’s harder for me, because they are my only opportunity for having a child. These are my children, my last hope of having a biological child and being able to carry a child.”
On June 13, Torres’ case was heard in the appellate court in Phoenix.
“This isn’t an issue about Mr. Terrell preventing Ms. Torres from becoming a parent, it’s simply him exercising his right to not become a parent, and to enforce the agreement the parties reached at the beginning before they created these embryos,” Claudia Work, appellate counsel for Terrell, told BuzzFeed News.
They are still waiting to hear back about the decision — it could come tomorrow, or months from now.
While Torres waits for the courts, the biological window during which she can actually use the embryos is rapidly closing. She had her fallopian tubes removed at the time of her cancer treatment and a follow-up surgery in September because doctors found cancerous cells in her uterus. Her doctors are now warning that Torres’ case has higher stakes: They will soon need to remove her uterus and ovaries to prevent her cancer from coming back.
For now, Torres is trying to wait as long as she can to see if the case settles in her favor.
“I’m still weighing the chance that I could potentially be awarded my embryos,” she said. “I’m willing to take that risk at the moment, in order to be able to have a child. I’m willing to wait.”