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Arizona passes bill on what to do with frozen embryos after divorce

16 April 2018
Appeared in BioNews 945

Arizona's Governor has signed into law a bill that dictates how a couple's frozen embryos can be used if they separate.

The bill states that frozen embryos created by a former couple must be given to the partner who wants to use them to establish a pregnancy, even if this goes against the other person's wishes. The unwilling party would have no legal responsibility towards the resulting child. 

The new law overrides any previously established contract between the couple. Kristen Engel, Democrat Representative for Tucson, said that parents and the courts should be responsible for that decision, not the legislature: 'They decide who will get these embryos in the case of divorce, and often that is key to their decision as to whether to go through with the treatment or not'. 

If both ex-partners wish to use the embryos, the law stipulates that they must be awarded to the party with the highest medical probability of pregnancy occurring. Speaking to Arizona-based radio station KJXX, Dr Drew Moffitt, division director of reproductive endocrinology and infertility at Banner University Medical Centre in Phoenix, Arizona gave a hypothetical example: a 40-year-old man, with a new younger partner, would be awarded the embryos over his 40-year-old ex-wife – who contributed the eggs – as the younger woman has a statistically higher chance of a successful pregnancy.

'This will be very distasteful to a lot of people,' said Dr Moffitt.

The bill has also been criticised by the National Infertility Association because it is drawn from child custody standards, which have previously only applied to children who had already been born. They fear that this bill will set a precedent for conferring 'personhood' on embryos (see BioNews 941).

Cathi Herrod, president of conservative lobbying group the Centre for Arizona Policy, which supported the bill, said it 'properly balances the interest of both spouses … 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.' 

'[The embryo is] not just a car or a dining table or a piece of furniture,' said Gary Marchant, professor of law at Arizona State University. 'It's something that requires more respect than that and needs to be dealt with sensitivity, regardless of your view on whether this is a person.'

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