                                      IN THE

 SUPREME COURT OF THE STATE OF ARIZONA
                       ____________________________________________


                         IN RE THE MATTER OF:

                         JOHN JOSEPH TERRELL,
                           Petitioner/Appellee,

                                           v.

                             RUBY TORRES,
                          Respondent/Appellant.

                      ______________________________________________


                          No. CV-19-0106-PR
                         Filed January 23, 2020
                      _____________________________________________


         Appeal from the Superior Court in Maricopa County
           The Honorable Ronee F. Korbin Steiner, Judge
                        No. FN2016-001785
                            AFFIRMED
                         _________________

            Opinion of the Court of Appeals, Division One
                      246 Ariz. 312 (App. 2019)
                             VACATED

                            _________________

COUNSEL:

Eric M. Fraser (argued), Hayleigh S. Crawford, Osborn Maledon, P.A.,
Phoenix; Claudia D. Work, Campbell Law Group, PLLC, Phoenix,
Attorneys for John Joseph Terrell

Stanley D. Murray (argued), Stanley David Murray Attorney at Law,
Scottsdale, Attorney for Ruby Torres
                             TERRELL V. TORRES
                            Opinion of the Court


                           ____________________

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in
which JUSTICES BOLICK, GOULD, LOPEZ, and MONTGOMERY joined.

                           ____________________

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1            Ruby Torres and John Terrell entered an agreement directing
the disposition of cryopreserved embryos should the couple divorce. We
here decide whether the parties’ agreement granted the family court
discretion in awarding the embryos or whether it directed that disposition.
We conclude the agreement directed donation of the embryos to another
couple.
                            BACKGROUND

¶2             In June 2014, thirty-three-year-old Torres was diagnosed with
cancer, requiring treatment that could cause infertility. Before undergoing
treatment, Torres decided to enhance her chances of later having a
biological child by using her eggs and a donor’s sperm to create embryos
and then cryopreserving (freezing) those embryos for later implantation
through in vitro fertilization (“IVF”). Torres asked her then-boyfriend,
Terrell, to serve as the sperm donor and, after initially declining, he agreed.

¶3           In July, Torres and Terrell signed a series of pre-printed joint
consent forms required by Fertility Treatment Center (“FTC”) before it
would perform IVF-related services. At issue here is the form entitled
“Embryo Cryopreservation & Embryo Disposition” (“the Agreement”),
wherein FTC agreed to store any embryos for up to ten years. The
Agreement established that any embryos would be the couple’s joint
property and, as such, joint consent would be required for their use or
disposition. Torres and Terrell agree that the Agreement governs any
dispute between them concerning disposition of the embryos.

¶4            Although the Agreement acknowledged that the disposition
of cryopreserved embryos was “a rapidly evolving field, both medically
and legally,” paragraph 10 described three alternate dispositions in the
event the couple separated, divorced, died, or became incapacitated:
(1) discard the embryos, (2) donate the embryos to another couple, or
(3) allow one partner to use the embryos with the contemporaneous


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                             TERRELL V. TORRES
                            Opinion of the Court


permission of the other. A “note” warned that any embryos produced
could not be used to produce a pregnancy over the other partner’s objection
and stated that in the event of a divorce, both parties would have to give
“express, written consent” before one could use the embryos to achieve a
pregnancy.

¶5             Paragraph 10 ultimately asked the parties to indicate joint
disposition choices under different scenarios by checking boxes and
initialing those choices. Significantly, in the event of divorce or dissolution
of their relationship, Torres and Terrell checked and initialed the first
provided option in paragraph 10(H):

       Divorce or Dissolution of Relationship. In the event the
       patient and her spouse are divorced or the patient and her
       partner dissolve their relationship, we agree that the embryos
       should be disposed of in the following manner (check one box
       only):
       [x] A court decree and/or settlement agreement will be
       presented to the Clinic directing use to achieve a
       pregnancy in one of us or donation to another couple
       for that purpose.
       [ ] Destroy the embryos.

The Agreement also provided that either or both parties could change their
disposition selections “at any future time, or until the embryo(s) are
disposed” by providing written notice to FTC and entering into a new
contract.

¶6            Four days after signing the Agreement, Torres and Terrell
married. The parties then underwent IVF procedures, which produced
seven viable embryos that FTC cryogenically preserved and stored.
Shortly thereafter, Torres underwent chemotherapy, which caused “a
significant drop in her reproductive function.”

¶7           Terrell initiated this matter by petitioning for divorce in 2017.
The dispute here concerns the proper disposition of the embryos. Torres
wants the embryos for future implantation, and Terrell, who does not wish
to father any future children with Torres, asks that they be donated to
another couple.




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                             TERRELL V. TORRES
                            Opinion of the Court


¶8             Following an evidentiary hearing, the family court found that
paragraph 10(H) of the Agreement foreclosed destruction of the embryos
but did not resolve whether either Torres or Terrell should get the embryos
or whether they should be donated. Consequently, the court balanced the
parties’ interests to make that decision and concluded, “[Terrell’s] right not
to be compelled to be a parent outweighs [Torres’s] right to procreate and
desire to have a biologically related child.” See Davis v. Davis, 842 S.W.2d
588, 603–04 (Tenn. 1992) (describing the balancing-of-interests approach).
It therefore directed FTC to donate the embryos to another couple.

¶9             In a divided opinion, the court of appeals vacated the family
court’s disposition of the embryos and directed the court to award them to
Torres. Terrell v. Torres, 246 Ariz. 312, 325 ¶ 61 (App. 2019). The majority
interpreted paragraph 10(H) as providing the parties’ consent for a court to
use its discretion to either award the embryos to one party or direct their
donation. See id. at 321 ¶ 39. It agreed with the family court that a court
should balance the parties’ interests to make the disposition decision. See
id. at 322 ¶ 43. But it concluded the family court here improperly balanced
the parties’ interests and erred as a matter of law by not awarding the
embryos to Torres. See id. at 322–25 ¶¶ 43–56.

¶10           The dissent disagreed that paragraph 10(H) granted the court
authority to dispose of the embryos by balancing the parties’ interests
rather than as dictated by the Agreement. See id. at 326 ¶¶ 64–65 (Cruz, J.,
dissenting). Interpreting the Agreement, the dissent found the embryos
must be donated. See id. ¶ 66. Alternatively, the dissent concluded the
majority failed to accord due weight to the family court’s discretion in
balancing the parties’ interests. See id. at 328 ¶ 71.

¶11           We granted review because this case involves unique issues
of statewide importance.

                               DISCUSSION

¶12          Neither party contests that the family court must enforce a
contract between a couple that directs the disposition of embryos in the
event of divorce. Subject to defenses prescribed by contract law, we agree.
Our courts have traditionally enforced contracts between divorcing couples




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                              TERRELL V. TORRES
                             Opinion of the Court


regarding the disposition of property.1 See A.R.S. § 25-317(A)–(B)
(providing that parties may enter into written separation agreements
directing property dispositions and that courts must generally enforce
those agreements). Similarly, other state courts addressing the disposition
of embryos in dissolution proceedings have looked first to any existing
contracts. See, e.g., J.B. v. M.B., 783 A.2d 707, 719 (N.J. 2001); Kass v. Kass,
696 N.E.2d 174, 180 (N.Y. 1998); Davis, 842 S.W.2d at 597; Litowitz v. Litowitz,
48 P.3d 261, 267–68 (Wash. 2002). We agree that agreements between
couples regarding the disposition of their embryos “should generally be
presumed valid and binding, and enforced in any dispute between them.”
Kass, 696 N.E.2d at 180.

¶13           The dispute here is whether paragraph 10(H) of the
Agreement leaves the dispositional choice to the courts’ discretion, as
Torres argues and the lower courts concluded, or whether the Agreement
requires donation of the embryos, as Terrell asserts and the court of appeals
dissent found. We review the interpretation of the Agreement de novo as
an issue of law. See Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003).

¶14           Despite the Agreement’s sensitive subject matter, we apply
ordinary interpretive principles to arrive at its meaning. See Kass, 696
N.E.2d at 180 (“The subject of this dispute may be novel but the common-
law principles governing contract interpretation are not.”).             When
interpreting a contract, we seek to discover and effectuate the parties’
expressed intent. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 152
(1993). To do so, we construe the provisions “according to their plain and
ordinary meaning,” First Am. Title Ins. Co. v. Johnson Bank, 239 Ariz. 348, 350
¶ 8 (2016), unless it can be shown that the parties intended a special
meaning, Taylor, 175 Ariz. at 153. In doing so, we consider a provision’s
meaning in the context of the entire contract. See Climate Control, Inc. v. Hill,
86 Ariz. 180, 188 (1959) (“A clause in a contract, if taken by itself, often
admits of two meanings, when from the whole contract there is no
reasonable doubt as to the sense in which the parties use it.”). Finally, we


1
 Since the family court’s ruling here, the legislature enacted A.R.S. § 25-
318.03, which directs the disposition of embryos in marriage dissolution
proceedings regardless of any contract. See 2018 Ariz. Sess. Laws ch.128, §
1. That statute does not state that it applies retroactively, and we do not
consider it further. See A.R.S. § 1-244 (“No statute is retroactive unless
expressly declared therein.”).


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                             TERRELL V. TORRES
                            Opinion of the Court


attempt to reconcile and give effect to all terms of the contract to avoid any
term being rendered superfluous. See Taylor, 175 Ariz. at 158 n.9.

¶15           We start with paragraph 10(H), which sets forth the parties’
joint dispositional choice in the event of divorce or dissolution of the
relationship. The parties clearly did not choose to destroy the embryos
because they did not check the box indicating that choice. See supra ¶ 5.
That leaves two options, both of which are the subject of the checked box:
“A court decree and/or settlement agreement will be presented to [FTC]
directing use to achieve a pregnancy in one of us or donation to another
couple for that purpose.” See id.

¶16           Read in isolation, paragraph 10(H) does not reveal how a
court would choose between the options if the parties were unable to agree
on the disposition of the embryos. But when read in context, we agree with
Terrell that paragraph 10(H) means that upon divorce or dissolution of the
relationship, the parties chose to donate the embryos absent a
contemporaneous agreement for use by one of them.

¶17           Before listing dispositional choices under different scenarios,
paragraph 10 advised the parties that three choices existed in the event of
separation, divorce, death or incapacitation:

       1.     Discarding the cryopreserved embryo(s)

       2.     Donating the cryopreserved embryo(s) to another
       couple in order to attempt pregnancy. (In this case, you may
       be required to undergo additional infectious disease testing
       and screening due to Federal or State requirements. This will
       require contemporaneous permission of both living partners
       unless otherwise specified by a court decree and/or
       settlement agreement in the event of divorce or dissolution of
       the relationship.)

       3. Use by one partner with the contemporaneous permission
       of the other for that use.

Significantly, a “note” in paragraph 10 warned that “[e]mbryos cannot be
used to produce pregnancy against the wishes of the partner. For example,
in the event of a separation or divorce, embryos cannot be used to create a



                                      6
                             TERRELL V. TORRES
                            Opinion of the Court


pregnancy without the express, written consent of both parties, even if
donor gametes were used to create the embryos.”

¶18           Against this backdrop, paragraph 10(H) instructs FTC how to
proceed in the event of a divorce or dissolution of the relationship. Notably,
the checked selection does not reflect a final dispositional choice but rather
narrows the choices and obligates the parties to present FTC with a court
decree or settlement agreement directing unilateral use or donation of the
embryos. The provision does not modify or negate the requirement for
express, contemporaneous consent by the parties for a unilateral award of
the embryos to produce pregnancy. Nor does it grant the family court
discretion to make either a unilateral award or direct donation. Instead,
assuming the parties could not produce a settlement agreement, as
occurred here, it requires them to procure a court decree directing FTC in
the disposition.

¶19            We agree with the court of appeals’ dissent that this
requirement is hardly surprising as FTC would have reasonably required
either an agreement or a court order to direct disposition of the embryos,
thereby insulating itself from liability, in the face of the parties’ break-up
and potentially conflicting instructions. See Terrell, 246 Ariz. at 326 ¶ 65
(Cruz, J., dissenting). This is especially so as the Agreement permits the
parties to unilaterally change their dispositional choices until FTC disposes
of the embryos.

¶20            Because the parties did not produce a settlement agreement
directing disposition of the embryos, paragraph 10(H) required the family
court to examine the Agreement to determine the parties’ dispositional
choice or, if one was not made, award the embryos employing common law
principles.     See Kass, 696 N.E.2d at 180.       Because paragraph 10
unambiguously requires one party’s express, contemporaneous permission
before the other can use the embryos to achieve a pregnancy after divorce,
the family court could not award the embryos to one party against the
other’s wishes. Here, Terrell objected to awarding the embryos to Torres to
produce a pregnancy. Thus, the only choice available to the family court
under paragraph 10(H) was donation of the embryos, which did not require
contemporaneous consent of the parties. See Agreement ¶ 10(2).

¶21           The court of appeals reached a different conclusion,
interpreting the checked box in paragraph 10(H) as authorizing the family
court to balance the parties’ interests to either award the embryos to one


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                             TERRELL V. TORRES
                            Opinion of the Court


party or direct their donation to another couple. See Terrell, 246 Ariz. at 321
¶ 39. The court of appeals viewed the checked box as the parties’ “express,
written consent” to unilateral use of the embryos by either party, thus
complying with paragraph 10’s “consent” requirement. See id. For several
reasons, we disagree.

¶22            First, the checked box in paragraph 10(H) did not state that
one party would be awarded the embryos in the event of divorce or
dissolution of the relationship. Conversely, other subparts of paragraph 10
reflect the parties’ consent to unilateral awards. In paragraph 10(A), the
parties explicitly consented to awarding the embryos to Torres if the couple
discontinued IVF treatment. Similarly, the parties consented to awarding
the embryos to a named person in the event of Torres’s death (paragraph
10(E)) or Terrell’s death (paragraph 10(F)). If the parties had intended
paragraph 10(H) to constitute “express, written consent” to a unilateral
award, we would expect similar specificity. Also, paragraph 10(H)’s
inclusion of donation as an option in the checked box further undermines a
conclusion that the parties jointly consented to a unilateral award by
checking the box. In short, consent to producing a settlement agreement or
court decree directing a unilateral award or donation is not express, written
consent for use by one party to produce pregnancy.

¶23           Second, if the checked box in paragraph 10(H) constituted
consent for the family court to award the embryos to one party over the
other’s objection, the note’s requirement for express, written consent by
both parties for a unilateral award in the event of separation or divorce
would be meaningless. See Taylor, 175 Ariz. at 158 n.9. In other words, if
checking the box in paragraph 10(H) provided consent to a unilateral
award, there was no need to include a note separately requiring such
consent. Interpreting the checked box as requiring donation if the parties
were unable to agree on a unilateral award at the time of separation or
divorce gives meaning to both paragraph 10(H) and the note.

¶24           Third, the court of appeals ignores the requirement that
permission for one party’s use of the embryos be “contemporaneous” with
that use. See Agreement ¶ 10(3). Unlike the contemporaneous permission
required if infectious disease testing and screening is needed to donate
embryos, the Agreement does not permit a court decree to negate the
contemporaneous permission required for a unilateral award. See
Agreement ¶¶ 10(2)–10(3). But interpreting the checked box in paragraph
10(H) as providing consent to the other partner’s future use of the embryos


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                             TERRELL V. TORRES
                            Opinion of the Court


in advance of divorce or dissolution of the relationship negates the
contemporaneousness requirement.

¶25            We are cognizant of the unavoidable emotional fall-out
attendant to the disposition of the embryos here. But the family court was
required to enforce the parties’ chosen disposition of the embryos as set
forth in the Agreement. Cf. Kass, 696 N.E.2d at 180 (encouraging advance
directives before parties embark on IVF and cryopreservation “to think
through possible contingencies” and to “minimize misunderstanding and
maximize procreative liberty by reserving to the progenitors the authority
to make what is in the first instance a quintessentially personal, private
decision”). The parties checked a box in paragraph 10(H) that left open the
option of one party using the embryos if both agreed at the time their
relationship ended and directed donation of the embryos if an agreement
could not be reached. Because the parties did not agree to a unilateral
award, the court could only direct donation of the embryos. The court of
appeals erred by deciding otherwise. Although the family court likewise
erred by balancing the parties’ interests rather than enforcing the
Agreement, it correctly directed donation of the embryos. In light of our
decision, we need not decide whether the family court should balance
parties’ interests if they do not have a contract governing the disposition of
embryos or whether the court of appeals here correctly balanced the parties’
interests. Finally, because Torres did not prevail, we deny her request for
attorney fees.
                                CONCLUSION

¶26           We vacate the court of appeals’ opinion and affirm the family
court’s order directing donation of the embryos.




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