Proposed Arizona Law Could Promote Embryonic Personhood

A new bill in Arizona has some reproductive rights advocates worried that the state is trying to set a precedent that would establish embryonic personhood — a first in the United States.

Proponents argue that the bill “protects a parent’s right to his or her in vitro embryos in a divorce proceeding,” and is simply a necessary clarification in the law. But because they’re backed by national conservative interests that have historically lobbied against reproductive freedoms, critics are viewing their claim with a grain of salt.

SB 1393 might sound innocuous, and like a much-needed fix to a heartbreaking problem: What happens when a couple divorces and they can’t agree on what should happen with embryos they froze while they were married?

This situation isn’t just hypothetical, as highlighted by the case of Arizona resident Ruby Torres, a breast cancer survivor who froze embryos before starting treatment in the hopes of having children in the future. Torres and her husband later separated, but when she asked for the embryos so she could have biological children, he refused. He didn’t want to bear the cost of parenting, he said.

Fortunately, the two of them had signed a medical agreement at the time of the procedure, articulating how they would handle this situation in the event that it arose. In accordance with the agreement, the judge ruled that the embryos should be donated to a fertility bank or another couple. But Torres appealed, and her fight isn’t over.

Situations like these may not be common, but they are snarled and difficult to untangle. SB 1393 purports to resolve the issue by legislating that in the event of a dispute, embryos should go to the person who “intends to allow the in vitro human embryos to develop to birth.”

It would terminate all rights for the other party in the dispute, and if they were a genetic parent, they would be required to submit medical records that would be kept on file for 99 years. If both partners want the embryos but only one donated genetic material, that person would be granted access.

In effect, Arizona is passing legislation on the disposition of embryos that sounds a lot like disputes over child custody. That’s by design, say some opponents, who fear that this law is setting embryos up like actual children in a divorce. They claim it’s unnecessary legislation, as courts can rely on contracts and other documentation to make reasonable decisions in disputes of this nature.

Representatives of Resolve, a nationwide fertility advocacy group, wrote in opposition to the legislation, warning that it could “take away individuals’ rights to determine whether or not they want children.”

Imagine being in a bitter custody dispute and having your partner seize embryos, when you’ve decided you no longer want genetic children. Think about how it might feel to watch your ex, or their partner, or a surrogate, gestate embryos that you contributed genetic material to. Resolve worries that the law could be used to make it effectively impossible to destroy embryos, as well — even in cases where people had banked a large number.

The organization notes that the majority of embryos fail to develop, and that no embryos in frozen storage can even become children without someone willing to gestate them. Though it goes unmentioned, the technology for artificial wombs is quite a long way away — and when it does arrive, it may open up a new can of worms with respect to issues like these.

This bill could create considerable inconveniences and deprive people of choices, while setting up a dangerous precedent in suggesting that a microscopic cluster of cells is equivalent to an actual human. It’s another example of legislation used to slowly throttle reproductive rights in the United States, chipping away bit by bit.

And with a growing number of embryos in cold storage, SB 1393 may be providing a hint about the next frontier of reproductive rights battles: What’s going to happen to the hundreds of thousands of embryos in storage in the United States?