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Divorce and embryo custody may not be a topic that immediately comes to mind when considering family law, but it is a growing issue in the legal field.

Arizona has seen a surge in disputes over the use of frozen embryos following a divorce, raising complex legal questions about the rights and responsibilities of both parties involved. 

When a couple undergoes in vitro fertilization and creates frozen embryos, they may not anticipate the possibility of a future divorce. However, when that does happen, the use of the embryos becomes a point of contention, leading to legal battles over custody and implantation. This is where a knowledgeable and experienced family law firm can be invaluable in dealing with embryo custody in Arizona.

This article covers the following topics:

frozen embryo custody in divorces

Introduction to Frozen Embryos in Arizona Divorce Law

In Arizona, the handling of frozen embryos in divorce cases is governed by the state’s unique law, known as the “Parental Right to Embryo” law.

This law mandates that in divorce proceedings, in vitro embryos must be awarded to the spouse who intends to allow them to develop to birth. 

This is a notable shift from the more common practice of treating embryos primarily as marital property and deciding their fate based on agreements made between the couple and fertility clinics.

Arizona’s approach emphasizes the intent of one party to bring the embryos to term, potentially overruling any pre-existing contractual agreements between the parties regarding the embryos.

This law was introduced following a high-profile case in Phoenix involving a couple who had undergone in vitro fertilization before the wife underwent cancer treatment. The case raised questions about the rights to use the embryos post-divorce, especially when one party opposed their future use.

However, this law has sparked debate and concerns regarding its potential implications. It raises complex ethical and legal questions, particularly around forcing procreation and the potential for using embryos as leverage in contentious divorces.

It also presents untested challenges in cases involving same-sex marriages, where the determination of “the best chance for the in vitro human embryos to develop to birth” could involve a range of factors, including biological, financial, and technological considerations

Are Embryos Considered Property?

In family law, the classification of embryos, especially in divorce, can be complex, as it intersects legal, ethical, and moral considerations. Traditionally, many courts have treated embryos as a form of property, albeit a special kind, due to their potential for human life.

This perspective allows for the application of property law principles in divorce proceedings.

Arizona’s stance on this issue is notably distinct. The state’s “Parental Right to Embryo” law, a first-of-its-kind, requires courts to award embryos in divorce proceedings to the spouse who intends to use them for childbirth.

This approach focuses on embryos’ potential for life, rather than viewing them strictly as marital property. 

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same-sex couple ivf dispute

Frozen Embryo Custody in Same-Sex Divorces

In the context of Arizona law, particularly for same-sex couples intending to bring frozen embryos to life, the Arizona Revised Statutes provide specific guidelines. According to the statutes, if both spouses in a same-sex marriage intend to allow the in vitro human embryos to develop to birth, the resolution of any dispute regarding the disposition of these embryos must be done in a manner that provides the best chance for the embryos to develop to birth.

This means the court is directed to make decisions that favor the potential of the embryos becoming living children.

When both spouses have contributed their gametes for the creation of the embryos and both wish to use them, the decision becomes more complex. The court must then consider which scenario would most likely lead to the successful development of the embryos. Factors such as the health, resources, and circumstances of each spouse could be taken into account to determine where the best chance for development lies.

In cases where only one spouse has provided gametes, the law stipulates that the embryos should be awarded to the gamete-providing spouse if both intend to use the embryos.

This provision acknowledges the biological connection to the embryos of the spouse who provided the gametes.

It’s important for same-sex couples dealing with such scenarios to seek legal counsel from a family law attorney who is well-versed in Arizona’s specific laws governing the custody of frozen embryos. Each case can have its unique complexities, and professional legal guidance is crucial in navigating these sensitive matters.

frozen embryo laws in arizona

Comparative Analysis: Frozen Embryo Laws in Other States

In Arizona, the “Parental Right to Embryo” law requires courts to award in vitro embryos to the spouse who intends to allow them to develop to birth, regardless of preconception agreements. This law uniquely focuses on the potential for childbirth, distinguishing it from the approaches in most other states​​​​.

Other States’ Approaches


Illinois, in the “Szafranski v. Dunston” case, focused on agreements made at the time of IVF. The court considered the parties’ original intent and circumstances, such as the woman’s medical condition that made the embryos her only chance for a biological child. 

New Jersey

New Jersey’s approach, as seen in the “J.B. v. M.B.” case, aligns more with Arizona’s. The court awarded the embryos to the spouse wishing to use them, citing the significance of the potential life they represent. However, unlike Arizona, New Jersey still considers prior agreements and the specific circumstances of the case​​.

New York

In New York, the case of “Kass v. Kass” emphasized contractual agreements. The court upheld an agreement stipulating that embryos would be donated for research in the event of divorce, reflecting a distinct difference from Arizona’s law that can override such agreements​​.


In the Pennsylvania case “Reber v. Reiss,” the courts decision was based on interpreting the couple’s initial agreement made at the time of their in vitro fertilization (IVF) treatment. This approach signifies the importance Pennsylvania’s legal system places on respecting the intentions and agreements that couples have at the time of creating the embryos.

Frequently Asked Questions and Answers 

  1. What happens to unused embryos in the event of a divorce in Arizona?
    • In Arizona, the court typically awards unused embryos to the spouse who intends to use them for childbirth, as per the “Parental Right to Embryo” law. This decision is made in the best interest of allowing the embryos to develop to birth.
  2. Can a family law attorney influence the disposition of frozen embryos in a divorce?
    • A family law attorney can provide legal counsel and representation in court, advocating for their client’s interests regarding the frozen embryos. However, the final decision rests with the court, guided by Arizona law and the specific circumstances of the case.
  3. Are there any ethical considerations in disputes over frozen embryos in Arizona?
    • Yes, ethical considerations play a significant role in these disputes. Decisions about frozen embryos often involve moral questions about potential life, reproductive rights, and personal autonomy.
  4. What legal approach is taken in Arizona for divorce cases involving frozen embryos?
    • Arizona’s legal approach is unique in that it mandates the award of embryos to the spouse intending to use them for childbirth, overriding any pre-existing agreements if necessary.
  5. How does the court determine who is awarded the embryos?
    • The court considers the intent of each party to use the embryos for childbirth and other relevant factors, such as the ability and willingness to provide for a child’s upbringing.
  6. Is it common for one party to be completely exempt from parental responsibilities for a child born from frozen embryos after a divorce?
    • Yes, in Arizona, if one spouse is awarded the embryos and chooses to use them, the other spouse can be exempted from parental responsibilities unless they later consent to assume such responsibilities.
  7. Can frozen embryos be fertilized and used for parenthood after a divorce?
    • Yes, if awarded to a spouse who wishes to use them, frozen embryos can be fertilized and used for parenthood, subject to the conditions set by the court.
  8. In Arizona, how are frozen embryos treated differently from other marital assets in a divorce?
    • Frozen embryos are often treated as a special type of property due to their potential for life, with specific laws like Arizona’s “Parental Right to Embryo” law governing their disposition.
  9. Is there a liability for child support if one party uses the embryos against the other party’s wishes?
    • Under Arizona law, if one party is awarded the embryos and uses them, the other party may not necessarily be liable for child support unless they agree to assume parental responsibilities.
  10. Can the decision about frozen embryos be appealed in Arizona’s family law courts?
    • Yes, decisions regarding frozen embryos can be appealed if there are grounds such as legal errors or misapplication of the law.

For more detailed information and legal advice specific to your situation, it’s highly recommended to consult with a skilled and responsive family law attorney who is knowledgeable about Arizona’s laws and experienced in handling cases involving frozen embryos.

How a Family Law Attorney Can Help

Divorce Attorneys in Phoenix AZIn Arizona, especially in complex divorce cases involving sensitive issues like frozen embryos, a family law attorney can provide crucial guidance and support. These attorneys offer a deep understanding of Arizona’s specific laws in family law, including the unique challenges presented in cases involving frozen embryos.

They can effectively manage essential legal documentation, represent clients in court, and offer emotional support throughout the process. Their expertise in negotiation and mediation is particularly valuable in seeking amicable resolutions in family law disputes. Recognizing the emotional and ethical complexities of such cases, these attorneys provide personalized, empathetic counsel tailored to the unique aspects of each situation.

For those in need of legal assistance in Arizona, particularly in family law matters, reaching out to a knowledgeable attorney is essential. The Law Offices of Daniel Hutto offers free consultations, allowing potential clients to discuss their case and understand their legal options without any initial cost.

You can contact them for a free consultation at 602-833-0986. More information about their services and how to get in touch can be found on their contact page: AZ Criminal and Family Law Contact Us.

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