Arizona Cancer Survivor Can't Use Her Frozen Embryos After Divorce, Court Rules

The Arizona Supreme Court directed Ruby Torres to donate the embryos to another couple

Ruby Torres
Photo: Carolyn Van Houten/The Washington Post via Getty

The Arizona State Supreme Court ruled against Ruby Torres on Thursday in her case against ex-husband John Joseph Terrell, deciding that she will not be able to use the fertilized embryos they froze while married.

In 2014, Torres was diagnosed with cancer and told that her treatment could cause infertility. To better her chances of later having biological children, she decided to use her eggs to create fertilized embryos she could later implant through in vitro fertilization (IVF), court documents say.

Her then-boyfriend, Terrell, agreed to be the sperm donor, and the couple signed a series of agreements with the fertility clinic — one of which outlined what would happen to the embryos should the couple split up before using them.

In the court documents, the agreement is outlined to have said that if Torres and Terrell split up, the embryos could either be “donated to another couple” or used by one of them to have children with the “express, written consent of both parties.”

Ruby Torres
Carolyn Van Houten/The Washington Post via Getty

Torres and Terrell married just four days after signing the agreement but later divorced in 2017. After their dissolution, Terrell no longer wanted to father children with his ex-wife, and would not give Torres consent to use the frozen embryos — launching the former couple into a series of court cases and appeals.

Their case was first brought forward to a family court, that ruled against Torres and directed the former couple to donate the embryos, according to ABC 15. She then appealed their decision to state Court of Appeals which overturned the ruling in March 2018.

The appeals court claimed the agreement they entered into was unclear, as one clause in the contract seemed to suggest that a family court could be brought in to grant one of the parties permission to use the embryos should the couple be unable to agree on whether to donate the embryos or not.

This was Torres’s main argument, her lawyer, Stanley D. Murray tells PEOPLE.

“Both the Superior Court and the Court of Appeals interpreted the contract to say that the parties agreed that the courts should decide who gets the embryos if [Torres and Terrell] couldn’t decide,” Murray tells PEOPLE. “That was what our argument was, and so if the court has to decide then they have to balance interest. The father’s interest in not being a father versus the mother’s interest in having a child.”

Terrell’s attorney, Eric M. Fraser, tells PEOPLE that “these are extremely difficult and emotional issues, so it’s best for couples to make decisions ahead of time.”

“Before creating the embryos, this couple decided to donate their embryos upon divorce unless they both agreed to use them. The Arizona Supreme Court enforced their contract, which gives much-needed certainty to other couples around the state that courts will respect the decisions they make,” Fraser added. “In addition, my client could have been on the hook for child support if his ex-wife used the embryos. No one should be forced to have a child with their ex-spouse when the couple already agreed ahead of time not to do that. His ex-wife wants to change her mind and disregard the contract they both signed with their fertility clinic.”

In their decision, the Supreme Court said they were “cognizant of the unavoidable emotional fall-out attendant to the disposition of the embryos,” and “affirm the family court’s order directing donation of the embryos.”

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