Republicans in the Arizona legislature passed a bill which overrides contracts regarding fertilized embryos in cases of divorce.
SB 1393 directs courts to “award the in vitro human embryos to the spouse who intends to allow the in vitro human embryos to develop to birth.”
In cases where both spouses intend to allow the embryos to be born, the preference is given to the spouse which contributed gametes to the embryo. If both contributed their genetic material to the embryos, then the judge is directed to provide the embryos to the spouse most likely to develop them.
The bill seems to operate under a winner-takes-all system. SB 1393 does not include a condition whereby the embryos could be split between the spouses.
However, the bill does make clear that the spouse not awarded the embryos has the choice to be involved or not with any child born from the embryos.
State Senator Nancy Barto (R-LD15) is the prime sponsor of SB 1393. It passed the Senate and House on party lines, 18 to 12 and 33 to 25, respectively. The bill now goes to Governor Ducey for his signature or veto.
State Representative Eddie Farnsworth (R-LD12) pointed to a court case where ownership of a couple’s frozen embryos were in dispute as the impetus for SB 1393.
Arizona Capitol Times reports that the case involved a woman, Ruby Torres, and her husband who froze embryos with the intent of implanting them after her cancer treatment.
“During divorce proceedings, Torres presumed that the embryos would be treated as property and divided up,” the article explained. “But a judge, citing objections from her husband — and the language of a contract they had signed at the time of the medical procedure — concluded that the embryos had to be donated to a third party.”
Farnsworth said that since the couples originally freeze embryos with the intention of having children, then that is how judges should determine who receives the embryos after a divorce.
“That’s what this bill is trying to address, that we will keep that intent intact,” Farnsworth said.