Planned Parenthood – In a divorce, who gets custody of the embryos?

In a divorce, who gets custody of the embryos?

In a divorce, who gets the embryos? In the summer of 2014, a newly minted Phoenix lawyer named Ruby Torres had a whirlwind few weeks that would end up determining the course of her life. After being diagnosed with bilateral breast cancer in the late spring, Torres, then 33, met with a fertility specialist in early July to see if she could preserve her ability to have children before chemotherapy-induced menopause. She was told she had just one chance—just one fertility cycle—to extract eggs ahead of her urgently needed treatment.divorce embryos

At the time, egg freezing was an iffy science; even after the advent of a flash-freezing process called vitrification, many unfertilized frozen eggs never survived the thawing process. Torres was advised to freeze embryos instead. Which meant she needed to find sperm. Immediately.

She had been dating a man named John Terrell for several years. They had a “good relationship”—at least in her eyes. Terrell initially declined to be Torres’ sperm donor (jacking off into a cup at a doctor’s office didn’t appeal to him, she recalled), but he eventually agreed after he learned that Torres’ ex-boyfriend had volunteered first. On a Friday in July, they signed a contract at a fertility clinic, which said that neither of them could use the embryos without the other’s consent. At lunch a few days later, they made the “rash decision” to get married. At the Bloom Reproductive Institute in Scottsdale soon after, Torres’ eggs were extracted and they made seven embryos together.

“I was happy that he had changed his mind,” Torres told me on the phone in February. “He was the man I was in love with. He was the one I wanted to be with and wanted to be the father of my children.”

In a divorce, who gets the embryos? Fast-forward two years later: The couple’s relationship had collapsed. The split was not amicable. According to Torres, the tail end was marred by infidelity and domestic violence (a charge that Terrell denies). Even though she remembers Terrell verbally giving her the embryos, the fate of their genetic material became the center of their divorce trial in family court. The judge eventually ruled against Torres, deciding that they must be donated to a third party. When Torres appealed, the court came down in her favor, ruling that her right to procreate outweighed her ex-husband’s desire not to. Then Terrell appealed the decision to the Arizona Supreme Court, which reversed the appeals court decision in late January: Torres cannot use the embryos without the consent of her ex-husband, and must donate them instead. Her hopes of having a biological child were permanently crushed.

Torres sees this as a simple issue, the right to have a baby: By denying her ownership of her embryos, she said, “you are taking my child from me.”

That’s one way of looking at it. Another way is through Terrell’s eyes: He believes his right not to become a parent trumps her desire to become one. His relationship with Torres was never serious, he claimed; they only dated “on and off.” According to family court testimony and a March phone call I had with his lead counsel at the Arizona Supreme Court, Eric M. Fraser, he married Torres to give her health insurance. He provided the sperm not because he saw a future with her, but because it was the “honorable thing,” especially since her cancer diagnosis seemed like “basically a death sentence.”

By the time their relationship ended, Fraser told me, Terrell was sure he did not want to create a baby with Torres. There was “no realistic way” he could have stayed out of that child’s life; they had overlapping friends and lived in a small community where everyone knew each other. Plus, the courts could not waive child support responsibility. No matter how many times Torres requested a preemptive child support waiver for Terrell in the event that she used the embryos—and she did request that—there was no way he could be off the hook for payments in case she died or got sick or went to jail. Unlike sperm donation or many adoptions, this wasn’t anonymous. Everyone would know he was the father.

According to estimates by reproductive endocrinologists, there may be about a million frozen embryos in the United States. There have been court battles over the fate of frozen embryos since the 1990s. But if the last few years are any indication, many more will become mired in divorce court. Torres and Terrell’s case is one of a handful of similar ones that have continued to pop up around the country, all involving the fate of embryos created by a couple who were once together and now are not. Many of them hinge on whether the right to be a parent is more important than the right not to be. There have been judges in Connecticut, MassachusettsTennesseeNew Jersey, and California who were swayed by arguments similar to Fraser’s, and therefore ruled against the spouse seeking to use the embryos. Most publicly, last October a judge in Louisiana dismissed a lawsuit filed against the actor Sofia Vergara by her ex-fiancé, Nick Loeb, for possession of their embryos. These cases sometimes go the other way: Courts in Illinois and Pennsylvania awarded embryos to women because they had no other chance of having a biological child. Legal experts suspect that one of these embryo cases will eventually reach the U.S. Supreme Court, having huge implications for abortion, stem cell research, and in vitro fertilization.

vice.com, June 1, 2020 by Nona Willis Aronowitz

Click here to read the entire article.

Embryo Donation May Be The Answer For You

If you are asking what to do with your extra embryos, embryo donation is a viable, and ethical, option.

Individuals and couples who have turned to IVF to help them have their families are now confronting a confounding question: what do we do with extra embryos?  Embryo donation is becoming the method of choice for many of us, myself included.  Every year when the embryo storage bill arrives, the ethical dilemma comes again.

The Process

Each clinic will have a different protocol to follow for directed embryo donation.  Most require an Embryo Donation Agreement between the donor parent/s and the recipient individual or couple, as well as a clearance for transfer, which includes such details as spousal consent (if one donor parent is not genetically related to the embryo) and which clinic’s cryopreservation equipment will be used.  Once all the pieces are in place, the process goes pretty fast.

To be prepared, it is a good idea to collect all of this information in advance from your fertility clinic.  They will provide you with your own health related information and, if a HIPAA waiver is prepared, the clinic may coordinate directly with the recipient’s clinic to streamline the process.

Embryo Donation Agreements

The requirement of an Embryo Donation Agreement makes good sense for all parties.  Most physicians require that an agreement is reviewed by legal counsel and executed before discussing this as an option with their patients. This agreement spells out the details of the transfer.  These details include: confidentiality and sharing of health information, physical and psychological screening of the donor/s and the recipient/s, custody of the embryos, intention regarding parentage of a child born through the embryo donation, the duration of the agreement timing and legal disclaimers as to the uncertainty of the law around embryo donation.

While the last item may cause alarm for some, it is generally understood that Embryo Donation Agreements are created to define the intention of the parties so that if, at some point in the future, there is a disagreement about the disposition of the embryos, there will be a document that anchors the intention of the parties to the original transfer date.

My Story

My husband and I were recently alerted to the closure of the fertility clinic that helped us have our son through egg donation and surrogacy.  As many gay men who turn to surrogacy know, with a young egg donor, you are likely to have more than one viable embryo.  We kept them in storage until now, but when confronted with the choice of transferring them to another facility or “discarding” them, we asked ourselves if embryo donation would be the best option.

We needed more input.  Our choice, when we had our son, was to remain involved in the lives of our egg donor and our surrogate mother.  We were fortunate enough to find two amazing women who wanted this type of ongoing relationship as well.  We wanted to include our egg donor in this “embryo” conversation because of our relationship.  When we emailed about the idea of embryo donation, she thought it was wonderful.  The thought of “discarding” our remaining embryos just didn’t feel right for any of us.

We agreed that we would try to find either a couple or individual who had been trying to have a child but could not.  Luckily, through our network of friends, we found the perfect person who was looking for a sibling for her son.  The thought of helping someone else have, or grow, their family makes me understand how surrogate mothers must feel.  I am in no way comparing our donation to the journey that is surrogacy, but I do feel that spark of love and hope that a child can bring.  Embryo donation doesn’t have to be a mystery.  It can offer peace of mind to families who find themselves asking what to do with extra embryos.  And you might be surprised whose dream of a family you can help come true.

Anthony M. Brown

For more information, please email anthony@timeforfamilies.com.

Arizona Governor Signs New Human Embryo Law

When a couple is unable to conceive naturally or medical treatments — like chemotherapy — make future pregnancies unlikely, there are a variety of fertility options available, including harvesting a woman’s eggs, freezing them and using them at a later date.

Up until now, reproductive fertility law specialists in Arizona would help couples navigate any tricky ethical issues that might arise in the future, like what happens if you split up or divorce before you decide to use the eggs.Arizona Embryo

But, a new law signed Tuesday by Gov. Doug Ducey has the potential to upend any contractual agreements written between husbands and wives or domestic partners, and dictates who is allowed to keep frozen eggs after a breakup.

Cathi Herrod, President of Center for Arizona Policy, said the new human embryo law helps make the law clearer and it is a positive step for Arizona.

“Just like a judge will decide when there are disputes over property, disputes over who gets the family dog — now who gets the family embryos will also be decided by a judge according to the law,” Herrod said.

by Lauren Gilger, KJZZ.com, April 4, 2018

Click here to read the entire article.

 

Was judge pushing anti-gay agenda?

Walker appointee rapped for treatment of same-sex couple in surrogacy case.

A former Dane County judge appointed by Gov. Scott Walker likened surrogacy to “human trafficking” and took highly unusual steps that added tens of thousands of dollars in costs for a gay couple seeking to add to their family.

Judge James Troupis’ actions, which included denying parental rights to the couple, were overturned by another Dane County judge and have also been appealed to the state Court of Appeals. And they arguably violated the ethical standards in place for members of the judiciary.anonymous sperm donors

Troupis, who has since left the bench, in August 2015 appointed a Waukesha County law firm that employs an outspoken opponent of same-sex marriage to assist in the case. That resulted in hefty additional legal fees for Jay Timmons and Rick Olson as they attempted to become the legal parents to their infant son, born to a surrogate in Wisconsin. And the couple says the judge wreaked emotional havoc on their family by keeping the child’s legal status in limbo for 10 months.

In early July, Dane County Judge Peter Anderson vacated Troupis’ order, giving Timmons and Olson parental rights to Jacob, who will be a year old in August. Troupis had already terminated the parental rights of the surrogate, who never contested the contract she had with Timmons and Olson.

Anderson raised serious concerns about his former colleague’s conduct in the case, calling it “harsh,” “weird” and “faulty,” according to an online account by Timmons of his family’s ordeal. Anderson said Troupis’ decision also contained a “manifest error” of the law, Timmons wrote.

Kevin St. John, one of the attorneys for the couple, did not return a call seeking comment on the appeal or whether his clients intend to file a complaint against Troupis with the Wisconsin Judicial Commission. The code of judicial conduct prohibits judges from, among other things, performing their duties with bias or prejudice.

“A judge may not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and may not knowingly permit staff, court officials and others subject to the judge’s direction and control to do so.”

Timmons and Olson live in McLean, Va., a high-end suburb of Washington, D.C. Timmons is president and CEO of the National Association of Manufacturers, which, according to his bio, is the “largest manufacturing association in the United States representing small and large manufacturers in every industrial sector.” Timmons also formerly worked for several Republican lawmakers.

The couple, who also have two young daughters, received a gift of two frozen embryos from friends about two years ago. After spending about a year researching legal issues, they sought out a surrogate in Wisconsin, believing state law here clearly allowed a same-gender couple to be recognized as parents of a child born through surrogacy. According to court documents, the surrogate was paid $35,000.

About two months before the expected birth, on June 25, 2015, reserve judge Sarah O’Brien held a hearing on the couple’s petition for parental rights. O’Brien’s interim order awarding them parental rights was expected to be finalized upon Jacob’s birth.

by Judith Davidoff, July 18, 2016

Click here to read the entire article.