Do Contracts Matter in Family Matters?

This guest post is from Eleanor Brink Kersey, Regent Law rising 3L and recent Family Law student:

A person can make a contract for anything…literally anything, including one’s sperm or eggs.  This is exactly what an Arizona couple did upon the news they may never be able to have children together. When Ruby Torres received the diagnosis that she had breast cancer, her chances of conceiving and birthing biological children significantly decreased. Chemotherapy treatments, though crucial in curing cancer, can negatively impact other functions of the body, namely those needed to procreate. After some back-and-forth, Torres’ then-boyfriend, John Terrell, agreed to donate his sperm for in vitro fertilization (IVF). The couple eventually married. However, the marriage did not last long; two years later, the couple commenced divorce proceedings. During the couple’s time together, both dating and married, neither tried to do anything with the saved embryos.

What is most troubling about this situation is the subsequent litigation regarding the fate of the embryos. The trial court awarded the embryos to the clinic, which could, in turn, donate them to a third-party per the terms of the IVF agreement. As can be expected, Torres appealed the decision. The Appeals Court decided to ignore the express terms of the IVF contract and instead focus on Torres’ inability to biologically conceive children. She was awarded the embryos in express violation of the contract and the express wishes of her now ex-husband, who had no desire to have children or co-parent children. The clincher: because Terrell contributed to the creation of the embryos, he may be responsible for child support if Torres decides to use the embryos.  A contract completely agreed to by each party containing explicit provisions on how the parties would handle disputes on the fate of embryos goes unheeded and puts a responsibility on a man he did not consent to all to protect the woman’s desire to conceive children biologically. 

Family restoration works to value all the parties to a family, children and parents.  The Torres-Terrell case is an example of what a court might do with your contract depending on circumstances.