Arizona Passes Law To Dictate How Separated Couples' Frozen Embryos Can Be Used

Arizona has become the first state in the country to pass a law that would allow frozen embryos to be given to the person who wants to develop them "to birth" after a couple separates or divorces.

Here & Now's Lisa Mullins speaks with Nita Farahany (@NitaFarahany), professor of law and philosophy at Duke University, to consider the legal and ethical implications.

"You don't usually hear about people who get divorced deciding to have a child together after they've gotten divorced," she says. "And that's ultimately what this creates the possibility of, is you could have incredibly contentious divorce disputes — people who are unable to really cooperate in any possible way — suddenly thrust into becoming parents together."

On the ethical implications of this law

“It's an interesting and significant departure from past practices with respect to what happens to embryos after divorce. It used to be the case — and going back over 20 years now to the first case that dealt with this, Davis v. Davis — it usually respected the wishes of the parent who did not want to become a parent with the other party. If one party objected, then the other party didn't get the embryos to bring them to term. Now ... it does just the opposite, and it makes a person who does not wish to be a parent, become a genetic parent, and it creates a lot of emotional and financial ties to a child that a person may not have wanted to have with the party that they divorced with."

On what happens to the embryos under this law

"So what the law was before was both parties would have to agree. Both people would have to say, 'Yes, we want to use that embryo to have a child,' whether it's together or giving it to one party or the other one — for the man perhaps a surrogate could bring it to term; for the woman she might choose to transfer it herself. And most clinics have contracts that you have to sign before creating the embryos that specify what happens in the situation of divorce. This law now trumps that.

"And this law trumps the contract that the two parties had, you know, developed before, which had specified how they wanted to deal with the embryos post-divorce. And you know, on the one hand there have been some cases that have done that. So women who created these embryos in their earlier reproductive years and are now of an age where they can no longer create eggs of their own that could be viable, in some of those cases, the women have been granted the right to use the embryos because it's their only chance to have a genetic child. But in most of the cases, the party that has not wanted to become a genetic parent or a parent — because it doesn't have to be their own genetic material — it has been their wishes that have trumped the other one following most of actually abortion law finding that the right to procreate or not procreate are both included within the constitutionally protected right to privacy that was recognized in Roe v. Wade by the U.S. Supreme Court."

"It makes a person who does not wish to be a parent, become a genetic parent, and it creates a lot of emotional and financial ties to a child that a person may not have wanted to have with the party that they divorced with."

Nita Farahany

On what happens if both parents want the embryo

"That's an interesting and complicated question, and I don't know how the courts would resolve that. I assume that they would allow the woman if she wanted to be the gestational carrier, to be the gestational carrier. But one of the interesting questions that this law raises is what happens with custody? Suppose that the man doesn't want to be a parent and the woman does. She's given the right to the embryos, brings the embryo to term, assuming it's successful — many of these would fail to lead to a live birth — and she then wants to have sole custody. You know, is that going to be consistent with what existing law is? Probably not. Probably if he wanted to then have custody, or he would have custodial rights as well and might also have financial obligations for child support or other things."

On the provision in the law that says the other parent isn't liable for child support

"If that's true, that's great. Although that's also, I'm not sure that that would be legitimate because it's ultimately what's in the best interest of a child. I think there's lots of provisions of this law that are going to end up being challenged in court."

On what happens if neither person wants the embryo

"Usually the contracts have specified what happens. And so the contracts would say, if neither party wants the embryos, either the embryos are destroyed, or they could be donated for research. They might have also said that if neither party wants to use the embryos to become pregnant that they might transfer it or donate it — their embryo donations — to other parents or people who wish to become parents. And so they could choose to donate it to another individual or couple.”

"I think it's going to end up likely being constitutionally challenged by the first parent who does not want to become a parent in one of these circumstances."

Nita Farahany

On if there is a part of the law that requires the person who gets the embryo to have a child

"I mean, I don't think that that's something you could mandate in the law. So the idea is whichever parent wants the embryo with the intention of bringing a child into the world. And of course, you know, again there's a very low success rate with many of these embryos. You know, if we're talking about three-day embryos, you know, maybe at best it's a 20 percent success rate. But regardless, it goes to the parent who declares their intention, not the one who offers any kind of guarantees. But you know, an interesting question from that is what happens if they change their mind and then the other parent wants it? And you know, [this law] just kind of creates ongoing entanglements, which is contrary to all of divorce law too."

On if the law has kept up with advances in genetics and reproduction technology

"They're trying, right? I mean a lot of these are being decided on a case-by-case basis in courts. And you see a lot of consistency with what the earliest case on this, Davis v. Davis, decided, siding with the parent who chose not to procreate, although that's been challenged by women who are beyond reproductive years and choose to want to use the embryos, so sometimes you see the court siding with that. There are some differences. This is a very big change to suggest that a legislative approach that recognizes whichever parent wants to use the embryos should have the right given to them, and I think it's going to end up likely being constitutionally challenged by the first parent who does not want to become a parent in one of these circumstances, and it will be interesting to watch.

"It's going to likely change what some individuals choose to do. Rather than freezing embryos, they might decide to freeze eggs and freeze sperm separately for future use. And what we have found over time is that the future viability of the eggs and sperm are lower than future viability of embryos. So, you know, it's going to I think set some people backwards in their likelihood of success in an effort to avoid this problem in the future."