Who Gets Custody Over Assisted Reproduction in Scottsdale, AZ?

divorce lawyer Scottsdale AZ

The world of assisted reproduction has been a beacon of hope for numerous couples in Scottsdale, AZ. It’s given many the joy of parenthood when natural methods posed challenges. Yet,divorce lawyer Scottsdale AZ with the marvels of modern medicine come a fresh set of legal considerations, especially in the unfortunate event of a divorce. Among the many questions raised is the pivotal one: Who gets custody over embryos, sperm, or ova that were frozen for future use? Owens & Perkins is here to provide clarity.

Assisted Reproduction – A Brief Overview

Assisted reproduction technologies (ART) encompass procedures such as in-vitro fertilization (IVF) where an egg and sperm are combined outside the body to form an embryo. Often, couples opt to freeze extra embryos for future attempts at pregnancy. These embryos, along with any unused sperm or ova, represent potential life and hold both emotional and legal significance.

The Law’s Perspective

The law is evolving in many states to adequately address the legal issues surrounding assisted reproduction.  The general principles that guide courts and legislatures in this area include:

  1. Written Agreements: Couples undergoing ART are usually asked to sign a consent form or agreement about what will happen to their embryos if they separate, divorce, or in the event of death. These agreements are highly significant in legal disputes, though not always definitive.
  2. Balancing Interests: Courts typically weigh the interests of both parties. For example, if one partner wants to use the embryos to have biological children and the other does not, the court examines factors like potential financial responsibilities, age, remarriage, and the presence of other children.
  3. Avoiding Forced Parenthood: A recurring theme in several court decisions is the reluctance to compel someone into parenthood against their will. 

Arizona recently took some definitive steps to specifically address this issue.  In 2019, the Arizona legislature created a new statute (A.R.S. 25-318.03) that provides in a divorce, legal separation or annulment proceeding that such embryos will be awarded to the spouse that intends to allow them to develop to birth and become living humans.  


A Deeper Look into A.R.S. 25-318.03

Commencing with divorce proceedings filed on or after August 3, 2018, A.R.S. 25-318.03 delineates the course for embryo disposition in contested divorce cases. Depending on the specific circumstances and individual intents, this novel legislation either clarifies the way forward or seeds fresh ground for contention and emotional turmoil in divorces involving frozen embryos.

Central to this new directive is the invalidation of prior mutual agreements between the parties concerning such embryos.  To be precise, previously agreed and signed in vitro fertilization agreements concerning embryo disposition, even those signed at the very inception of the embryo creation process, may have been rendered redundant by the new legislation. This profound shift means that in a contested case, the Court will strictly adhere to the provisions of A.R.S. 25-318.03 in the disposition of frozen embryos, irrespective of any conflicting terms in preceding agreements. This recalibration has left myriad couples grappling with in vitro agreements that have been rendered impotent for lack of a better term.  

However, this arguably only applies if the parties disagree as to the validity of these agreements and how the embryos should be disposed or awarded and the Court is forced to make the decision after a trial or evidentiary hearing – in other words, if the parties disagree as to the disposition of the frozen embryos such as a situation where one of them wants to keep them and disregard the earlier agreements as to disposition over the other’s objection.  

If the parties agree and stipulate to the prior in vitro agreement and its terms as to disposition of embryos pursuant to A.R.S. 25-317, then presumably the statute will not be applicable or have to be applied based on the agreement of the parties.  Parties are able to fashion their own agreements as to the disposition of property, which the embryos are legally speaking under A.R.S. 25-318.03 (A) (referring to A.R.S. 25-318(A) which deals with the Court’s duties in the division of property), and as long as the Court does not find such agreements by the parties “unfair”, then pursuant to A.R.S. 25-317 the Court can adopt said agreements as orders of the Court.  This specific circumstance has yet to be dealt with definitively by the Arizona legislature or the courts, so there are still possible avenues to proceed with prior in vitro agreements and the provisions concerning disposition of embryos as long as the parties are in agreement despite the dictates of A.R.S. 25-318.03.   

Challenges in Determining Disposition and Custody of Frozen Embryos

To truly grasp the implications of this law, it is pivotal to consider its stance on three potential scenarios:

  1. Unanimous Decision to Terminate Embryos: While the statute remains silent on this scenario, it can be inferred for the reasons above that mutual consent for embryo destruction would be honored. To solidify such decisions, it would be prudent for divorcing spouses to cement their intent with a binding written agreement pursuant to A.R.S. 25-317.


  1. Divided Stances on Embryo Utilization: The new legislation showcases a definitive bias towards the realization of the embryos into birth, effectively privileging procreation over its abstention. It mandates that in such disputes, the embryos should be entrusted to the spouse intent on their development to birth. The law also provides some leeway for the dissenting spouse. If the dissenting party did not contribute gametes for the embryo’s creation, they are automatically absolved of any legal ties or duties to any offspring; if they did contribute gametes, they can consciously choose to assume or decline legal parental responsibilities via a formal written agreement.  However, even if they decline to assume any parental obligations, they are still required to provide detailed and very personal health and genetic information and history to their ex-spouse. This requirement raises significant issues on personal privacy – is it fair for a party that never wanted to be a parent to be required to provide the very essence of personal, private information for the benefit of a total stranger?  Another issue is the possible and foreseeable misuse of this information in the future by a disgruntled ex-spouse, the child, or others involved in the process.   

This scenario also casts into sharp relief questions of fairness, especially when one partner, including in many LGBTQ+ relationships, is the sole gametic contributor. The looming question: Is it equitable for a non-biological spouse to be granted the embryos over the biological contributor? The current law, in its inclination to favor birth realization, could indeed confer the embryos to the non-biological spouse. Whether the Arizona judiciary will weave in provisions for equitable exceptions remains an intriguing prospect.

  1. Both Spouses Clamoring for Embryos: This scenario opens the door to greater ambiguity. In instances where a single spouse contributed gametes, the embryos naturally gravitate towards that individual. However, the situation is considerably murkier when both partners are biological contributors. Here, the law cryptically directs the court to favor the route providing the “best chance” for the embryos to manifest into birth. This vague directive is a hotbed for debates and litigation. Could the courts potentially equitably distribute multiple embryos between the spouses? And how would the courts weigh factors like age, physical and mental health, or even socioeconomic standing when defining the “best chance”?

How Owens & Perkins Can Assist

With such a delicate and multifaceted issue at hand, it’s imperative to consult professionals familiar with the nuances of assisted reproduction and family law.

  • Clarity and Guidance: Our team at Owens & Perkins ensures that couples understand the implications of their decisions when entering into ART agreements, making informed choices from the outset.
  • Expertise in Complex Litigation: If disputes arise, our skilled lawyers bring their vast experience to the table, passionately representing your interests.
  • Understanding and Sensitivity: Recognizing the emotional intricacies of ART disputes, we approach each case with empathy, ensuring that while the legal issues are addressed, the human element is never overlooked.

Family Attorney In Scottsdale AZ

The intersection of assisted reproduction and divorce law is intricate. As couples make profound decisions about potential future children, the legal realm seeks to balance these deeply personal choices with broader societal and ethical concerns.

For residents in Scottsdale, AZ, facing these profound decisions, Owens & Perkins stands as a beacon of legal excellence and compassionate counsel. In the ever-evolving realm of family law and assisted reproduction, having a trusted ally like an experienced family attorney at Owens & Perkins, can make all the difference. If you’re facing such a dilemma, we’re here to stand by your side and advocate for your future. Reach out at 480-994-8824 and get the help that you need.