In the News

Who Gets the Embryos?

Man and woman standing apart in silhouette

Who gets the embryos? A new Arizona law gives ownership of frozen embryos to whichever genetic parent can give them the best chance of a live birth, irrespective of the other’s wishes.

The new law advises courts in divorce cases to give custody of the embryos to the spouse that provided the gametes and/or intends to allow the embryos to develop to birth.

The Washington Post explains the dramatic shift in legal precedent, “With the number of frozen embryos in the United States soaring into the millions, disputes over who owns them are also on the rise. Judges have often — but not always — ruled in favor of the person who does not want the embryos used, sometimes ordering them destroyed, following the theory that no one should be forced to become a parent.”

Arizona, however, is taking the opposite approach. Under a first-in-the-nation law that went into effect July 1, custody of disputed embryos must be given to the party who intends to help them develop to birth.”
The law goes on to stipulate that if both spouses intend to allow the in vitro human embryos to develop to birth AND both spouses provided their gametes for the embryos then the spouse that can provide the best chance for it to develop to birth will be awarded the embryos. If only one spouse provided gametes (sperm or egg), then that spouse will be awarded the embryos.

Critical Response

Some critics of the Arizona law have claimed that this forces the opposing parent to pay child support, but the new law addresses that specifically. The law declares that the spouse not awarded the embryos will have no parental responsibilities and no rights, obligation or interest to any child resulting from the embryos unless the spouse provided gametes AND consents in writing to be a parent. The bill provided a resolution to the possibly messy financial obligations by providing that they would not be liable for child support.

“The Thomas More Society, an antiabortion group, is assisting in cases across the nation, asking judges to consider the embryos “children” and to make decisions based on their best interest. The society argues that a person who creates an embryo in preparation for in vitro fertilization has “voluntarily exercised his procreational rights” and that the resulting embryos “cannot be legally terminated at the whim of others.”

Abortion rights advocates say any legal endorsement of those arguments, if upheld, would effectively gut the right to an abortion. If a days-old embryo in a freezer has a right to life, why not a days-old embryo in utero? Fertility doctors, consumer advocacy groups and other organizations also weighed in.

The Center for Arizona Policy, a conservative lobbying group that has successfully pushed antiabortion legislation in the state, supported the measure, saying the bill would “lead to more consistent rulings.”

The American Society for Reproductive Medicine, which represents doctors, nurses and other professionals who work on fertility issues, opposed the measure, arguing that it would have a profound impact on reproductive medicine.”