Arizona: What Were You Thinking?
By Catherine Tucker and Marna Gatlin.
You may have heard about the new law, SB 1393, that was just passed in Arizona dealing with the disposition of any stored embryos owned by a divorcing couple.
The Arizona Legislature took a bold and unprecedented step with regards to the disposition of such embryos-you can read more about this in Rich Vaughn’s blog. Basically, the bill gives preference to the spouse who is willing to use the embryos to have a baby-whether on their own, with a surrogate, or by donating the embryos to other prospective parents. This makes sense since the bill was brought as part of the personhood movement which seeks to allow all cryopreserved embryos to develop into babies. However, we want to focus on a less talked about part of the bill that is tremendously problematic for moms via egg donation.
And why is nobody outside the PVED community talking about this?
The bill provides a tie-breaker provision that favors genetic contributors over non-genetic “parents”. In other words, women who formed their families via egg donation will have zero rights to stop their ex-husbands from using any leftover embryos. And that is scary.
The typical scenario is that a couple will have a child using a batch of donated eggs and the intended dad’s sperm. Sperm doesn’t age the same way as eggs, so this is how things usually play out.
Because ART technology is so highly refined nowadays, it’s common for extra embryos to be left over following a successful cycle and birth of a child. Some parents will want to use these extra embryos down the road to have another child. Other parents prefer to discard the embryos. Yet other parents will want to donate the embryos to another couple.
Many parents struggle with the decision about what to do with these embryos. And sometimes couples split up and disagree on what should happen to the embryos.
The Arizona law establishes a framework on what should happen to these embryos in a divorce. With regards to embryos created with donor eggs and the intended dad’s sperm, the spouse favoring allowing the embryos to develop to birth gets the embryos.
If both spouses claim they want to allow the embryos to develop to birth (I say “claim” because people will lie about this), the judge must look to the tie-breaker provisions. One of these tie-breaker provisions gives preference to the genetic contributor when a donor was used.
So, in these scenarios, the intended dad will automatically get custody of those embryos. While it’s great that Arizona is putting into place clear guidance for divorce courts, the law’s misplaced reliance on genetics is troubling.
The message this policy sends to Arizona moms via egg donation is that they are not equivalent parents to genetic parents. Something about being a genetic parent is, in Arizona at least, considered superior to being a non-genetic parent. There is some reason, at least in Arizona, where genetics trumps all else. Moms via egg donation should feel free to consider themselves “second class parents” in Arizona.
And this law can also lead to absurd results. What about a situation where a woman donates her eggs to her sister and brother-in-law. If the recipients decide to divorce, the husband could use the tie-breaker provision to gain exclusive control over the embryos and then proceed to use them to have a baby with his new girlfriend. Certainly not what the egg donor had in mind when she donated eggs to her sister!
And what’s next? Will genetic dads use this legal provision to argue that they should prevail in custody disputes involving their egg donor conceived children?
It’s a slippery slope where Arizona should not have gone in the first place. We urge the Arizona Legislature to reconsider this bad policy decision.
Marna Gatlin is the founder and executive director of Parents via Egg Donation a non-profit that supports families and individuals at any stage of the egg donation process. Catherine Tucker practices fertility law at New Hampshire Surrogacy & Fertility Law PLLC.