                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                           In re the Matter of:

              JOHN JOSEPH TERRELL, Petitioner/Appellee,

                                     v.

                  RUBY TORRES, Respondent/Appellant.

                        No. 1 CA-CV 17-0617 FC
                          FILED 3-14-2019


          Appeal from the Superior Court in Maricopa County
                         No. FN 2016-001785
             The Honorable Ronee Korbin Steiner, Judge

        VACATED AND REMANDED WITH INSTRUCTIONS


                               COUNSEL

Law Office of Dennis P. Levine PC, Phoenix
By Debora M. Levine
Co-Counsel for Respondent/Appellant

The Murray Law Offices PC, Scottsdale
By Stanley D. Murray
Co-Counsel for Respondent/Appellant

Stoddard Law Group PC, Phoenix
By Allie Stoddard
Co-Counsel for Petitioner/Appellee
                            TERRELL v. TORRES
                            Opinion of the Court

Campbell Law Group PLLC, Phoenix
By Claudia D. Work
Co-Counsel for Petitioner/Appellee

Sherman & Howard LLC, Phoenix
By Christopher M. Jackson, pro hac vice, Matthew A. Hesketh
Co-Counsel for Amicus Curiae Academy of Adoption & Assisted Reproduction
Attorneys

Daniel I. Ziskin PC, Phoenix
By Daniel I. Ziskin
Co-Counsel for Amicus Curiae Academy of Adoption & Assisted Reproduction
Attorneys


                                  OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Judge James P. Beene joined. Presiding Judge Maria Elena Cruz dissented.


C A M P B E L L, Judge:

¶1             Ruby Torres and John Joseph Terrell disagree about the
disposition of cryogenically preserved embryos1 created using Torres’ eggs
and Terrell’s sperm. The dispute arose over whether, under the terms of
their in vitro fertilization agreement (“IVF Agreement”), Torres could use
the embryos for implantation without Terrell’s consent. The parties did not
challenge the jurisdiction of the family court.2 Following an evidentiary

1    Arizona statute defines “human embryo” as “a living organism of the
species homo sapiens through the first fifty-six days of its development,
excluding any time during which its development has been suspended.”
Ariz. Rev. Stat. (“A.R.S.”) § 36-2311(3). While other courts have used
various terms including “preembryo,” A.Z. v. B.Z., 725 N.E.2d 1051, 1052
n.1 (Mass. 2000), and “pre-zygote,” Kass v. Kass, 696 N.E.2d 174, 175 n.1
(N.Y. 1998), we use the term “embryo,” in line with the legislature’s
definition. See also Davis v. Davis, 842 S.W.2d 588, 589 (Tenn. 1992) (similarly
using the term “embryo”).
2    In this case, the parties treated the embryos as joint property pursuant
to statute, see A.R.S. § 25-318(A) (authorizing the court in a dissolution
proceeding to divide property held in common equitably, though not



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                           Opinion of the Court

hearing, the court ordered the embryos to be donated to a third party for
implantation. We vacate the trial court’s order and hold that Torres may
use the embryos to attempt to become pregnant.

                              BACKGROUND

¶2             In June 2014, Torres was diagnosed with an aggressive form
of bilateral breast cancer. Torres’ oncologist explained that she would need
to begin chemotherapy within a month. The oncologist advised Torres that
the chemotherapy would impair her ability to become pregnant by causing
her to begin menopause, after which “there [was] no guarantee that [her]
body would recover . . . and come out of menopause.” The next month,
after meeting with Dr. Millie Behera, a fertility specialist at the Bloom
Reproductive Institute (the “Fertility Clinic”), she elected to undergo IVF to
produce embryos, using her own eggs and donor sperm.

¶3           Torres initially asked Terrell, then her boyfriend, to serve as
the sperm donor, but he declined. She began the process of preserving her
eggs and found another sperm donor, a prior boyfriend. Upon learning of
the other volunteer donor, Terrell changed his mind and agreed to be the
donor. He later testified he only did this as a favor.

¶4            On July 11, 2014, the parties executed the IVF Agreement,
provided by the Fertility Clinic, which included terms regarding the
parties’ informed consent for assisted reproduction, the cryopreservation of
embryos, and the disposition of any embryos that might result from the IVF
procedure. The IVF Agreement specified that any embryo resulting from
Torres’ egg and Terrell’s sperm would be their joint property.

¶5            The IVF Agreement also contained a provision addressing the
parties’ preferences regarding the disposition of embryos (the “Disposition
Provision”), stating, as relevant:

       10. Disposition of Embryos—Because of the possibility of you
       and/or your partner’s separation, divorce, death or
       incapacitation . . . it is important to decide on the disposition
       of any embryos that remain in the laboratory in these
       situations. Since this is a rapidly evolving field, both
       medically and legally, the clinic cannot guarantee what the


necessarily in kind), although they could have simply brought a contract
action. Neither party objected to the family court resolving this issue. The
outcome of this matter is not dependent upon their marital status.


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                          Opinion of the Court

      available or acceptable avenues for disposition will be at any
      future date.

      Currently, the three alternatives are:

          1. Discarding the cryopreserved embryo(s)

          2. Donating the cryopreserved embryo(s) to another couple in
             order to attempt pregnancy.

             ...

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

      This agreement provides several choices for disposition of
      embryos in these circumstances ([including] separation or
      divorce of the patient and her spouse/partner . . .). Disposition
      may also be controlled by the final decision of a court or other
      governmental authority having jurisdiction.

      I/We agree that in the absence of a more recent written and
      witnessed consent form, Fertility Treatment Center is
      authorized to act on our choices indicated below (items A-H),
      so far as it is practical.

(Emphasis added.)

¶6           The Disposition Provision also contained the following
general language entitled “Note”:

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

(Emphasis added.)

¶7            The Disposition Provision then identified various options for
the disposition of embryos, in differing future circumstances, such as death
of one or both parties, separation, or divorce. Specifically, subsection H
addressed the parties’ options upon divorce or dissolution of their
relationship:



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                           Opinion of the Court

       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).

       [1] 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.

       [2] Destroy the embryos.

The parties selected and initialed the first option placing the disposition
decision in the hands of the court. This is the sole provision in the
Disposition Provision of the Agreement between the parties and not
between the clinic and the parties jointly.

¶8            Four days after signing the IVF Agreement, the parties
married. The IVF procedure yielded seven viable embryos which were
cryogenically preserved for future use. Torres subsequently underwent
chemotherapy, causing her hormone levels to drop to menopausal
amounts. After two years of marriage, Terrell filed a petition for dissolution
of marriage. The seven embryos were still preserved and there had been no
attempt at implantation. The parties could not agree on the disposition of
the embryos—the primary dispute was whether the court could award
Torres the embryos to achieve a pregnancy.3

¶9            At the evidentiary hearing, neither party contested that the
IVF Agreement represented a valid, binding agreement regarding the
disposition of the embryos. Terrell explained he elected to sign the IVF
Agreement because he believed it was “honorable” to do so under the
circumstances. Relying on the “Note,” Terrell testified he never intended
for Torres to use the embryos without his consent. He explained that when
he signed the IVF Agreement, he hoped to have children with Torres “[i]f
she survived,” but at that time he thought her survival unlikely.


3      Terrell’s position regarding disposition of the embryos changed
during the proceedings: he initially argued the embryos should be
destroyed; later he took the position that he should be awarded the embryos
to prevent Torres from procreating against his wishes; and still later stated
he would agree to their use by a third party, rather than having the embryos
stored in perpetuity.



                                      5
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                            Opinion of the Court

¶10          Terrell also claimed that he only married Torres because she
needed health insurance; he went so far as to testify he would not have
married her but for that need. Indeed, when asked by counsel if he would
have “married [Torres] if she had not presented to [him] that she had cancer
and needed [his] health insurance,” he responded “[n]o.”

¶11            Terrell did not want Torres to have the embryos because he
was concerned about his “financial liability in the future, . . . as far as . . .
[his] inheritance or, [an obligation to pay] child support for a child that [he]
would[] never see[].” Terrell also stated concerns about the possibility of
Torres “poisoning” a child against him and “painting” him as a “monster.”
When questioned by the court as to whether he could “co-parent” with
Torres, he answered “[n]o.” Torres testified that, should she conceive a
child from the embryos, it would be Terrell’s choice whether he wished to
be involved in the child’s life. Torres also testified that she would not seek
child support from Terrell, and planned to implant the embryos when, and
if, she remarried.

¶12            Torres and Dr. Behera, the fertility specialist, both testified
that without the embryos, Torres would be unable to have biological
children because her hormone levels were menopausal after chemotherapy.
Behera testified that Torres’ lab work indicated “low to no” ovarian
function. Behera also testified that if Torres took medication to stimulate
her ovaries “it probably would not result in any viable eggs.” Agreeing
thatonly in a “miraculous situation”Torres could achieve “a
postmenopausal pregnancy,” Behera testified that there was a “less than 1
percent” chance of that occurring. Behera went on to explain that the
waiting list for obtaining donated embryos was long. Torres testified that
although she had considered adoption, due to her cancer diagnosis and a
genetic mutation “BRCA1” that increased her cancer risk, it was “unlikely”
she would be considered as an adoptive placement.

¶13          In the decree of dissolution, the family court noted there is no
Arizona case law or statutory authority addressing the disposition of
embryos in a dissolution proceeding. The court analyzed out-of-state case
law and identified three approaches adopted by other courts: (1) the
contract approach, (2) the balancing approach, and (3) the
contemporaneous mutual consent approach.

¶14           The trial court found that because the parties disagreed on the
disposition of the embryos, and because the parties had consented to a
judicial determination for disposition in the event of a dissolution, it should
apply a balancing approach based on the language of the IVF Agreement.


                                       6
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                            Opinion of the Court

Analyzing the parties’ competing interests, infra ¶ 45, the court concluded
that Terrell’s “right not to be compelled to be a parent outweigh[ed]
[Torres’] right to procreate and desire to have a biologically related child.”
The trial court directed the Fertility Clinic to donate any remaining embryos
to a third party or couple.

¶15         Torres timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(1).

                               DISCUSSION

I.     Overview: The Law of Other States

¶16         This is a case of first impression in Arizona. To begin, we must
determine what law should govern the disposition of cryogenically
preserved embryos created using one party’s eggs and another party’s
sperm when the parties disagree. An overview of how other states have
approached this issue provides significant context for this analysis.

       A.     The Contract Approach

¶17             Under the contract approach, an agreement between
progenitors, or gamete donors, regarding disposition of embryos is
generally presumed to be valid and binding, and will be enforced. Kass v.
Kass, 696 N.E.2d 174, 180 (N.Y. 1998). Some courts have held that such
agreements are enforceable “subject to mutual change of mind” by the
parties. Id.; In re Marriage of Dahl & Angle, 194 P.3d 834, 840 (Or. Ct. App.
2008) (citation omitted). Cf. J.B. v. M.B., 783 A.2d 707, 719 (N.J. 2001)
(holding that a mutual change of mind is not required and that agreements
entered into at the time of IVF will be enforced “subject to the right of either
party to change his or her mind about disposition up to the point of use or
destruction of any stored [embryos]”).4

¶18           The contract approach was first enunciated in Davis v. Davis,
842 S.W.2d 588, 597 (Tenn. 1992). That case involved dissolution
proceedings, in which there was no prior agreement between the parties, a
husband and wife, regarding the disposition of cryogenically preserved
embryos.5 Id. at 598. The court concluded as a matter of first impression that

4      Courts that have adopted this approach have also first considered
whether enforcing the parties’ prior agreement would violate state public
policy. Neither party in this matter argues that the contract approach
violates Arizona public policy.
5      We discuss this case in more detail below. Infra ¶¶ 26-28.


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                            TERRELL v. TORRES
                            Opinion of the Court

the contract approach should be the preferred method for resolving similar
disputes, stating:

       We believe, as a starting point, that an agreement regarding
       disposition of any untransferred [embryos] in the event of
       contingencies (such as the death of one or more of the parties,
       divorce, financial reversals, or abandonment of the program)
       should be presumed valid and should be enforced as between
       the progenitors.

Id. at 597. The Davis court noted such an approach enables “the progenitors,
having provided the gametic material giving rise to the [embryos], [to]
retain decision-making authority as to their disposition.” Id.

¶19            The contract approach has been the most preferred and most
adopted approach nationwide. See Szafranski v. Dunston (“Szafranski I”), 993
N.E.2d 502, 514, ¶ 40 (Ill. App. Ct. 2013); Dahl & Angle, 194 P.3d at 840-41;
Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App. 2006); Litowitz v. Litowitz, 48
P.3d 261, 267 (Wash. 2002); J.B., 783 A.2d at 719; Kass, 696 N.E.2d at 180;
Davis, 842 S.W.2d at 597. But see A.Z. v. B.Z., 725 N.E.2d 1051, 1057-58 (Mass.
2000) (rejecting the contract approach and concluding that it violated public
policy to enforce a contract “that would compel one donor to become a
parent against his or her will”).

¶20            Courts across jurisdictions have generally agreed that the
primary benefit of the contract approach is that it leaves deeply personal
decisions involving reproductive choices in the hands of the parties.
Szafranski I, 993 N.E.2d at 506, ¶ 18 (“[A] benefit[] of a contractual approach
is that . . . it removes state and court involvement in private family
decisions.”). That is, enforcing the parties’ prior agreements has the benefit
of “both minimiz[ing] misunderstandings and maximiz[ing] procreative
liberty by reserving to the progenitors the authority to make what is in the
first instance a quintessentially personal, private decision.” Roman, 193
S.W.3d at 50 (quoting Kass, 696 N.E.2d at 180).

¶21           The contract approach also provides certainty that the
contract will be binding and provides an opportunity for the parties to
carefully reflect on their different options and to think through their
preferences under different circumstances. Szafranski I, 993 N.E.2d at 515,
¶ 41 (“[H]onoring such agreements will promote serious discussions
between the parties prior to participating in [IVF] regarding their desires,
intentions, and concerns.”); Kass, 696 N.E.2d at 180 (“[P]arties should be
encouraged in advance, before embarking on IVF and cryopreservation, to



                                      8
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                            Opinion of the Court

think through possible contingencies and carefully specify their wishes in
writing.”). Moreover, the contract approach “encourages parties to enter
into agreements that will avoid future costly litigation.” Szafranski I, 993
N.E.2d at 506, ¶ 18.

¶22          The primary criticism of the contract approach is that there
are numerous “uncertainties inherent in the IVF process” that “extend[] the
viability of [embryos] indefinitely and allow[] time for minds, and
circumstances, to change.” Kass, 696 N.E.2d at 180. The court in Davis
agreed:

       [W]e recognize that life is not static, and that human emotions
       run particularly high when a married couple is attempting to
       overcome infertility problems. It follows that the parties’
       initial “informed consent” to IVF procedures will often not be
       truly informed because of the near impossibility of
       anticipating, emotionally and psychologically, all the turns
       that events may take as the IVF process unfolds.

842 S.W.2d at 597; see also In re Marriage of Witten, 672 N.W.2d 768, 777 (Iowa
2003) (noting criticism that the contract approach “insufficiently protects
the individual and societal interests at stake” by enforcing terms that may
be inconsistent with a party’s present “wishes, values, and beliefs”
regarding “matters of such fundamental personal importance” (quoting
Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An
Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L. Rev. 55, 88
(1999))).

¶23            Another concern with the contract approach is that, as here,
the IVF Agreement directing disposition of any embryos may be only part
of the informed consent agreement with the Fertility Clinic, which also
contains information on the risks of IVF treatment, and therefore can
include “anxiety-producing information a patient might be inclined to
resist or ignore.” Ellen A. Waldman, Disputing Over Embryos: Of Contracts
and Consents, 32 Ariz. St. L.J. 897, 924 (2000). Combining such medical
information with contract provisions regarding divorce and other difficult
subjects may make future determinations even more difficult because it
adds more “information that is difficult to process and thoughtfully
evaluate.” Id. at 924-25.

¶24            Courts have addressed these concerns by permitting parties
to subsequently jointly modify their initial agreement. See Kass, 696 N.E.2d
at 180; see also Davis, 842 S.W.2d at 597 (concluding that permitting initial



                                      9
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                            Opinion of the Court

agreements to be modified by a subsequent agreement will protect the
parties against some of the risks of uncertainty and high emotions). The
ability to subsequently amend an agreement allows the parties flexibility to
adapt the agreement to changing circumstances to address any new
concerns.

       B.     Balancing Approach

¶25           Next is the balancing approach, where a court balances the
competing interests of the parties. Davis, 842 S.W.2d at 603. That is, courts
will “consider the positions of the parties, the significance of their interests,
and the relative burdens that will be imposed by differing resolutions.” Id.
Courts have applied the balancing approach when they are unable to
enforce a prior written agreement because it is ambiguous, the agreement
grants the court the authority to make the disposition decision, or there is
no agreement to enforce. See id.; Reber v. Reiss, 42 A.3d 1131, 1136 (Pa. Super.
Ct. 2012).

¶26            Davis provides a framework for analyzing the disposition of
embryos outside of a written agreement. In Davis, a husband and wife had
not entered into any agreement regarding the disposition of embryos in the
event of a dissolution. Davis, 842 S.W.2d at 598. The wife wished to donate
the embryos to another couple. Id. at 604. The husband, however, wanted
the embryos destroyed. Id. at 603-04. After considering the wife’s interest in
knowing that the “lengthy IVF procedures” she had endured were not
“futile,” the court concluded that the wife’s “interest in donation [was] not
as significant as the [husband’s] interest . . . in avoiding parenthood.” Id. at
604.

¶27            The Davis court applied the following framework to balance
the interests of the parties in the absence of a contract:

       Ordinarily, the party wishing to avoid procreation should
       prevail, assuming that the other party has a reasonable
       possibility of achieving parenthood by means other than use
       of the [embryos] in question. If no other reasonable
       alternatives exist, then the argument in favor of using the
       [embryos] to achieve pregnancy should be considered.

Id.

¶28           To this end, the Davis court also concluded that “[t]he case
would be closer if [the wife] were seeking to use the [embryos] herself, but
only if she could not achieve parenthood by any other reasonable means.”


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                             Opinion of the Court

Id. The court noted that the wife still had the opportunity to undergo further
IVF procedures, as she was still able to harvest viable eggs. Id. Additionally,
she had previously attempted to adopt and therefore exhibited a
willingness to “forgo genetic parenthood.” Id.

¶29           The balancing approach requires a fact-intensive inquiry
looking at the parties’ interests in light of both current circumstances and
those existing at the time of the IVF treatment. A party’s interest in
parenthood includes the party’s interest in having a biologically-related
child. The interest in parenthood, however, is broader than that, and may
also include adoption. Cf. Reber, 42 A.3d at 1138 (“[S]imply because
adoption or foster parenting may be available . . . does not mean that such
options should be given equal weight in a balancing test.”). Contra In re
Marriage of Rooks, 429 P.3d 579, 594, ¶ 71 (Colo. 2018) (“[B]ecause . . . the
relevant interest at stake is . . . achieving or avoiding genetic parenthood,
courts should not consider whether a spouse seeking to use the []embryos
to become a genetic parent could instead adopt a child or otherwise parent
non-biological children.”).

¶30           Other courts have applied the Davis framework. See Szafranski
v. Dunston (“Szafranski II”), 34 N.E.3d 1132, 1161-62, ¶¶ 124-29 (Ill. App. Ct.
2015); Szafranski I, 993 N.E.2d at 515, ¶ 42; Reber, 42 A.3d at 1137-42. Cf. J.B.,
783 A.2d at 716, 720 (agreeing the party wishing to avoid procreation
should ordinarily prevail, but “express[ing] no opinion in respect of a case
in which a party who has become infertile seeks use of stored [embryos]
against the wishes of his or her partner, noting only that the possibility of
adoption also may be a consideration, among others, in the court’s
assessment”).

       C.     Contemporaneous Mutual Consent

¶31          Finally, there is the contemporaneous mutual consent
approach, which has only been adopted by the Iowa Supreme Court.
Witten, 672 N.W.2d 768.6 Under this approach, “no transfer, release,
disposition, or use of the embryos can occur without the signed



6      But see McQueen v. Gadberry, 507 S.W.3d 127, 157-58 (Mo. Ct. App.
2016) (without explicitly adopting the contemporaneous mutual consent
approach, affirming the trial court’s judgment which jointly awarded
embryos to a divorcing couple and ordered that the embryos could not be
released for any use without the signed authorization of both parties).



                                       11
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                            Opinion of the Court

authorization of both donors. If a stalemate results, the status quo would be
maintained.” Id. at 783.

¶32            This approach attempts to avoid many of the concerns
regarding judicial or state interference in individual reproductive choices,
which involve “highly personal” and “intensely emotional matters.” Id. at
777-79, 781. This approach has been criticized “as being totally unrealistic”
given that “[i]f the parties could reach an agreement, they would not be in
court.” Reber, 42 A.3d at 1135 n.5. For instance, it “give[s] each progenitor a
powerful bargaining chip at a time when individuals might very well be
tempted to punish their soon-to-be ex-spouses.” Szafranski I, 993 N.E.2d at
512, ¶ 31 (citing Mark P. Strasser, You Take the Embryos But I Get the House
(and the Business): Recent Trends in Awards Involving Embryos Upon Divorce,
57 Buff. L. Rev. 1159, 1225 (2009)). As such, applying this approach
“invite[s] individuals to hold hostage their ex-partner’s ability to parent a
biologically related child in order to punish or to gain other advantages.”
Id. We agree with such criticism. We decline to give one party a blanket veto
and accordingly reject this approach.

II.    Adoption of the Contract Approach

¶33           Having considered each approach, we agree with the majority
of jurisdictions and adopt the contract approach. As the dissent points
out—and to which the majority agrees—contracts matter. Specifically, we
hold that “[a]greements between progenitors, or gamete donors, regarding
disposition of their [embryos] should generally be presumed valid binding,
and enforced in any dispute between them.” Kass, 696 N.E.2d at 180. Such
agreements, like any contract, can subsequently be modified by written
agreement. If the parties have no prior agreement, or if the agreement
leaves the decision to the court, the balancing approach provides the proper
framework for the determination.7 Such a framework “recognizes that both

7      During the pendency of this appeal, Arizona adopted a new statute
governing the disposition of embryos in a proceeding for dissolution of
marriage or legal separation. See A.R.S. § 25-318.03. This statute only applies
to married couples and will not resolve similar disputes between
unmarried persons in the future. See A.R.S. § 25-318.03(A); A.R.S.
§ 25-318(A). The statute directs courts to “[a]ward the in vitro human
embryos to the spouse who intends to allow the in vitro human embryos to
develop to birth.” A.R.S. § 25-318.03(A)(1). Even if the spouses have a
disposition agreement, the statute requires the court to award the embryos
as prescribed by the statute. A.R.S. § 25-318.03(B). The statute was not in



                                      12
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                            Opinion of the Court

spouses have equally valid, constitutionally based interests in procreational
autonomy . . . [and] encourages couples to record their mutual consent
regarding the disposition of remaining [embryos] in the event of divorce by
an express agreement.” Rooks, 429 P.3d at 594, ¶ 72.

¶34            In applying the balancing approach, we agree with other
jurisdictions that the party who does not wish to become a parent should
prevail if the other party has a “reasonable possibility” of becoming a
parent without the use of the embryos. Davis, 842 S.W.2d at 604 (“If no other
reasonable alternatives exist, then the argument in favor of using the
[embryos] to achieve pregnancy should be considered.”); Szafranski I, 993
N.E.2d at 515, ¶ 42; J.B., 783 A.2d at 719-20.

¶35           Applying these principles, we turn to the facts of this case.

III.   Decree of Dissolution

       A.     The IVF Agreement

¶36          The trial court correctly started its analysis with the parties’
contract. Neither party disputes that the IVF Agreement is a valid and
enforceable agreement. At issue is how the contract is to be interpreted.

¶37            Torres argues section H of the IVF Agreement “clearly shows
that the parties intended for the trial court to make the decision as to the
disposition of the frozen embryos.” In contrast, Terrell argues that the
contract unambiguously provides that the court cannot award one party
the embryos without the express written consent of both parties.

¶38            “The interpretation of a contract is a matter of law, which we
review de novo.” Earle Invs., LLC v. S. Desert Med. Ctr. Partners, 242 Ariz.
252, 255, ¶ 14 (App. 2017). “When interpreting a contract . . . it is
fundamental that a court attempt to ‘ascertain and give effect to the
intention of the parties at the time the contract was made if at all possible.’”
Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 153 (1993) (quoting
Polk v. Koerner, 111 Ariz. 493, 495 (1975)). “To determine the parties’ intent,
we ‘look to the plain meaning of the words as viewed in the context of the
contract as a whole.’” ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 290-91,
¶ 15 (App. 2010) (quoting United Cal. Bank v. Prudential Ins. Co., 140 Ariz.
238, 259 (App. 1983)). When the terms of a valid contract are clear and
unambiguous we must give effect to the contract as written. Grubb & Ellis

effect at the time the trial court made its decision and we are not bound by
it in reaching a resolution.


                                      13
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                           Opinion of the Court

Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 86, ¶ 12 (App. 2006).
“In interpreting a contract, we attempt to reconcile and give meaning to all
its terms.” Weatherguard Roofing Co., Inc. v. D.R. Ward Const. Co., Inc., 214
Ariz. 344, 350, ¶ 27 (App. 2007). Moreover, we must give greater weight to
specific provisions—namely those that require an affirmative response
from the parties—in a contract “because specific contract provisions
express the parties’ intent more precisely than general provisions.” ELM,
226 Ariz. at 291, ¶ 18 (citation omitted).

¶39            The “Note,” which Terrell relies on, states that “in the event
of a separation or divorce, embryos cannot be used to create a pregnancy
without the express, written consent of both parties.” Just three pages later,
the parties provided the necessary “express, written consent” in subsection
H. The parties affirmatively elected that upon divorce or dissolution of their
relationship, a court could either award one party the embryos for
implantation or award the embryos to a third party for implantation.
Moreover, the parties acknowledged they could later change their
selections for disposition, “but need[ed] [a] mutual and written agreement”
to do so. Subsection H unambiguously governs disposition of the embryos
by providing the written consent to overcome the more general “Note.” See
id. In making the choice to allow the court to determine the disposition, the
court was required to employ the balancing approach.8

¶40            We reject Terrell’s argument that section H was included
because “if the parties [had] reached an agreement as to final disposition,
that agreement would, necessarily, and pursuant to Arizona law, [be]
included in either a decree or settlement agreement [pursuant to Arizona
Rule of Family Law Procedure 69(A)].” The IVF Agreement makes clear
that the parties were free “at any time” to jointly enter into a new agreement
and revise their disposition choices—had the parties reached a new
agreement, the clinic would honor the parties’ choice. Absent such an
agreement to modify their choices for disposition of the embryos, the

8     We further note that the IVF Agreement provided three “alternatives”
for disposition of the embryos: discarding the embryos, donation to third
party to attempt to achieve pregnancy, and use by one partner with
“contemporaneous permission” of the other partner. Supra ¶ 5.
Immediately following that statement, however, the IVF Agreement also
states that the disposition of the embryos “may also be controlled by the
final decision of a court or other governmental authority having
jurisdiction.” The parties were therefore aware that the three listed
“alternatives” were not exhaustive.



                                     14
                           TERRELL v. TORRES
                           Opinion of the Court

original IVF Agreement applies, and court intervention and decision-
making was mandated.

¶41            Terrell next argues that subsection H refers only to divorce,
“[t]o read the [IVF Agreement] as allowing a court to direct use of the
embryos by one-half of a divorcing couple, but as not allowing such an
option to couples who are unmarried and breaking up, or legally
separating, is nonsensical.” Terrell simply did not read the contractual
provision fully. Subsection H of the IVF Agreement applies to the
disposition of the embryos in the event of “[d]ivorce” or “[d]issolution of
[r]elationship” and, as such, is not limited to divorcing couples. Thus, we
do not interpret the IVF Agreement differently depending on the marital
status of the contracting parties.

¶42            The dissent posits that our reading of the IVF Agreement
renders the “Note” meaningless. It does not. The converse is actually true.
If the “Note” controls, it renders meaningless the parties’ election in the
Disposition Provision, which allows the court to award the embryos to one
party for all purposes, including “use to achieve a pregnancy in one of us or
donation to another couple for that purpose.” (Emphasis added.) With the
dissent’s construction of the “Note,” only if the parties agree would
implantation be possible, which runs against the plain language of Terrell’s
and Torres’ election in section H. The majority considered each provision
of the contract together to determine that, by written consent of the parties,
the court was authorized to make the disposition determination for the
embryos in this case. See id. (“[E]ach part of a contract must be read
together, ‘to bring harmony, if possible, between all parts of the writing.’”
(citation omitted)).

       B.     Balance of Interests

¶43           Given the authorization granted to the court in the IVF
Agreement, we must now proceed to balance the interests of the parties.
Application of the balancing approach involves mixed questions of law and
fact, which we review de novo. See Willie G. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 231, 233, ¶ 8 (App. 2005). We accept the trial court’s factual findings
unless they are clearly erroneous. In re Estate of Newman, 219 Ariz. 260, 265,
¶ 13 (App. 2008). See also Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344,
349, ¶ 21 (App. 2001) (“We can decide whether the superior
court correctly balanced the interests only after considering what it found
as facts.”).




                                     15
                            TERRELL v. TORRES
                            Opinion of the Court

¶44           The balancing approach allows the consideration of parol
evidence. See generally Davis, 842 S.W.2d at 603-04. In reviewing the
application of a balancing test, we accept the trial court’s factual
determinations. See Scottsdale Unified Sch. Dist. No. 48 of Maricopa Cty. v.
KPNX Broad. Co., 191 Ariz. 297, 302 (1998). “We are, however, free to draw
our own conclusions of law from these facts.” Id. To do so is not to reweigh
evidence, because as a matter of first impression, the trial court’s
application of the law to its findings created the error.

¶45            The trial court found that Torres had a strong interest in
having her own biologically-related child and it was “extremely
improbable” that Torres could achieve a post-menopausal pregnancy
without the embryos. Torres had other avenues to parenthood, as further
noted by the trial court: “[Torres could] still adopt or seek donation of other
embryos, even if the options are more difficult” or “not as desirable as
having a biological child of her own.” The trial court found Terrell “would
face the potential of significant financial responsibilities that despite
[Torres’] position cannot be waived by her.” The court further concluded
that “[Terrell] ha[d] legitimate concerns about parenting with [Torres]” and
it was “unlikely the parties [would] be able to co-parent.” The court also
found credible Terrell’s testimony that he “never intended on having
children with [Torres] if the parties were not together.”

¶46           Here it is undisputed that the sole purpose of the IVF process
was for Torres to preserve her ability to have biological offspring. She began
the IVF procedure immediately after receiving her cancer diagnosis and
information that cancer treatment would likely make it impossible to
become a biological parent through normal means. Following her doctor’s
advice and expertise, Torres elected to preserve embryos, increasing her
chances of successful procreation. As explained by Dr. Behera, the most
stable preservation method to ensure successful reproduction in the future
was to freeze fertilized eggs, or embryos. With this information, Torres
located a donor who was prepared to assist in the creation of fertilized eggs.
It was only after hearing about the other donor that Terrell agreed to
provide his gametes. Although the trial court found that Torres had less
than a one percent chance of having biological children through normal
means of pregnancy, and that she had gone through great pains to preserve
a method by which she could have biological children, the court
nevertheless appeared to conclude that the mere possibility that Torres
could conceive and bear a biological child after her cancer treatment tipped
the balance against Torres’ claims to the embryos.




                                      16
                            TERRELL v. TORRES
                            Opinion of the Court

¶47            The trial court erred by improperly concluding Torres’ “less
than one percent” chance of becoming pregnant through normal means and
the remote possibility of adoption or insemination with a donor embryo
negated her claims to these embryos. The trial court overstated Torres’
ability to become a parent through means other than the use of the disputed
embryos. Moreover, the court gave insufficient weight to Torres’ desire to
have a biologically-related child—which was the entire purpose of
engaging in IVF in the first place. In regard to her other avenues of
parenthood, Behera gave unrebutted testimony explaining that embryo
donation involved being placed on a long waiting list due to the limited
number of embryos available. Torres testified that adoption was “unlikely”
not only for the reason outlined by Behera, but also because of her medical
history, which includes a genetic mutation that substantially increases her
risk of cancer. This leaves Torres with less than a one percent chance of
having a biological child and only a speculative chance of having children
in the future.

¶48            Additionally, the trial court erred when it placed heavy
weight on the parties’ inability to “co-parent.” Nothing in the record
suggests that either of them expected or intended to co-parent any offspring
derived from the embryos. As the trial court found, “[Torres left] the choice
to [Terrell] to be involved or not to be involved in the life of a child if
awarded the embryos.” At no point did Terrell indicate he had any desire
to be a part of a child’s life; in fact, he anticipated he may never see children
resulting from the IVF procedure.

¶49           The trial court determined that the parties’ decision to use
IVF—as opposed to freezing “just” Torres’ eggs—weighed against her. As
the court explained, had she frozen just her eggs, “there would be no further
dispute, as [Torres’] eggs would be her sole property and it would not
involve the potential of [Terrell] becoming a father against his wishes.” This
was also error. Not only was Torres’ decision to freeze embryos medically
supported, the court also heard uncontested testimony that Torres gave up
a ready and willing alternate gamete donor. Without Terrell’s intervention,
Torres would likely have viable cryogenically preserved embryos ready for
implantation, as she planned.

¶50            The trial court found the parties “did not contemplate a
marriage and . . . bringing children into the world in the typical manner
[and] [a]s a result of [Torres’] cancer diagnosis, the parties’ actions were
more impulsive and expedient.” It later credited Terrell’s testimony that he
did not intend to have children with Torres if the marriage failed, based in
part on its finding that “[t]here was no evidence presented that after the


                                       17
                            TERRELL v. TORRES
                            Opinion of the Court

marriage the parties, for example, discussed having children regardless of
the status of their relationship.”

¶51           While the record supports the conclusion that the parties may
not have discussed having children after they married, this is irrelevant to
the parties’ decision to jointly fertilize embryos. Nothing in the record
demonstrates that the IVF Agreement was entered into impulsively or done
in contemplation of marriage. Torres, facing infertility and a serious cancer
diagnosis, was advised that the only way to preserve her fertility with
certainty was to undergo IVF treatments. Torres began IVF with an
immediate and specific intent to preserve her fertility. To be sure, the
parties entered into the IVF Agreement expediently, but the record shows
it was done with deliberation. The fact that Torres had already enlisted the
assistance of a different donor demonstrates her purpose—to preserve her
ability to have a biologically related child, or children, and not to simply
have a child biologically related to Terrell. Even though Terrell doubted
Torres would survive the cancer when he entered into the IVF Agreement,
his doubts that Torres would live long enough to use the embryos in the
future does not relieve him of his obligations under the contract. Torres and
Terrell sought to jointly preserve Torres’ fertility, and not simply to have a
child within a marriage, or even within a relationship.

¶52           It is of course true that if Torres were awarded the embryos,
Terrell could be legally responsible to financially support the children.9 See
A.R.S. § 25-814(A)(2) (presumption of paternity); McLaughlin v. Jones ex rel
Pima Cty., 243 Ariz. 29, 36, ¶ 29 (2017). That reality is the same today as it
was when the parties executed the IVF Agreement nearly four years ago.

¶53             Finally, we note the trial court erred as a matter of law to the
extent that it considered and relied on a constitutional right to procreational
autonomy to resolve the dispute. The trial court appeared to balance what
it construed as Torres’ “constitutionally established right to procreate”
against Terrell’s “right not to procreate.” Although expressing some
skepticism as to whether such “rights” pertained to an agreement between
the parties, and as to whether there is in fact a “right” not to procreate, the
trial court nonetheless concluded that Terrell’s “right not to be compelled



9      See Albins v. Elovitz, 164 Ariz. 99, 102 (App. 1990) (noting that a
custodial parent may waive child support payments, but “any such
agreement[s] [are] not binding on the court and will be enforced only so
long as the interest of the child is not adversely affected.”).



                                      18
                            TERRELL v. TORRES
                            Opinion of the Court

to be a parent outweigh[ed] [Torres’] right to procreate and desire to have
. . . child[ren].”10

¶54            We do not agree that such a framework is useful or applicable
when two individuals no longer agree on the disposition of embryos and
the disagreement cannot be resolved by the terms of a prior agreement.
Such constitutional rights are directed at protecting an individual against
government intrusion on personal decisions regarding reproduction. See
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849 (1992); Eisenstadt v.
Baird, 405 U.S. 438, 453 (1972); Skinner v. Okla. ex rel. Williamson, 316 U.S.
535, 541-42 (1942). Here, the parties specifically empowered the court to
decide any future dispute regarding disposition of the embryos. As such,
the trial court erred in concluding the dispute here involved a “right” to
procreate and a “right” not to procreate. Under the balancing approach, the
trial court should have only considered the parties’ competing and varying
interests.11

¶55           We have not, as suggested by the dissent, failed to give due
weight and consideration to the trial court, but have adopted its factual
findings in reaching our decision. Even as we defer to the court’s factual
findings, we must hold that the court erred in its application of the
balancing approach. This case presents compelling factual support for
awarding the embryos to Torres. If the factual underpinnings found by the
court here do not support Torres’ claim to the embryos, then there is likely

10      For instance, the trial court found that “to the extent either party had
a constitutional right regarding procreation with these embryos, they both
waived the right by . . . signing and executing . . . an agreement.” (Emphasis
added.)
11      We note that the trial court also found that awarding Torres the
embryos to achieve pregnancy was against public policy because
“litigation” over a potential child was “inherent” and would be contrary to
A.R.S. § 25-103 (declaring the public policy of this state and the general
purposes of Title 25 are “[t]o promote strong families [and] . . . strong family
values”). We disagree. Section 25-103 is inapplicable. To apply it to these
circumstances, in which one party wants to use embryos to procreate and
the other party objects, would always necessarily tip the balance in favor of
the objecting party; thus, it would functionally operate to give greater
weight to the objecting party’s interests much in the same way that the
contemporaneous mutual consent approach operates to give the objecting
party greater power in a dispute. Further, any conclusion as to whether
implantation of the embryos would result in “strong” families and family
values is speculative.


                                      19
                            TERRELL v. TORRES
                            Opinion of the Court

no factual scenario which would result in the award of the embryos to one
party over the objection of the other. The result reached by the trial court,
therefore, would be a de facto adoption of the contemporaneous mutual
consent approach—an approach we have rejected. Supra ¶ 32.

¶56            After reviewing the record, deferring to the superior court’s
factual findings, we apply the balancing approach to the competing
interests. The majority finds Torres’ interests in the embryos—especially
given that she gave up the opportunity to use another donor and she is
likely unable to become a parent (biological or otherwise) through other
means—outweighs Terrell’s interest in avoiding procreation. We therefore
vacate the trial court’s order and remand to the trial court to enter an order
awarding Torres the embryos.

IV.    Attorney Fees

¶57            Pursuant to A.R.S. § 25-324(A), the trial court has discretion
to award a party’s reasonable attorney fees “after considering the financial
resources of both parties and the reasonableness of the positions each party
has taken.” We review the trial court’s award of attorney fees for an abuse
of discretion. Murray v. Murray, 239 Ariz. 174, 179, ¶ 20 (App. 2016).

¶58            In the decree, the trial court denied Torres’ request for
attorney fees and costs after finding “there [was] not a substantial disparity
of financial resources between the parties” and “both parties acted
unreasonably in a limited way but neither more than the other.”
Specifically, the trial court found that Torres had acted unreasonably in
refusing to “refund [Terrell]’s insurance premiums until just before trial
started, even though the law supports such reimbursement.” Torres does
not contest the trial court’s finding regarding the disparity of income.
Instead, she contests the trial court’s finding that she acted unreasonably
and further argues, “[c]ompared to the number of instances showing
[Terrell]’s positions were unreasonable, [the] one instance of Torres’
unreasonableness does not justify completely [denying] her request for an
award of attorney[] fees.”

¶59           Even assuming it is undisputed that Terrell was entitled to
reimbursement of the insurance premiums, the record supports Torres’
contention that Terrell did not request reimbursement until a week before
the evidentiary hearing, in the pretrial statement. At the start of the hearing,
the parties reached a binding agreement that Torres would reimburse
Terrell $2,508.54 for the post-service insurance premiums and waived the
issue for purposes of the hearing. Although the trial court has discretion in



                                      20
                           TERRELL v. TORRES
                           Opinion of the Court

determining when a party is unreasonable, based on this record, the trial
court abused its discretion in concluding that Torres acted unreasonably.

¶60           We therefore remand the matter to the trial court, for
purposes of reassessing Torres’ request for attorney fees consistent with
A.R.S. § 25-324(A) and our conclusion that Torres was not unreasonable.

                              CONCLUSION

¶61            For the forgoing reasons, we vacate the trial court’s order
directing the embryos be donated to a third party. We remand the matter
for the trial court to enter an order awarding Torres the embryos, and for
the trial court to reconsider its denial of attorney fees. We grant Torres’
request for attorney fees and costs on appeal pursuant to A.R.S. § 25-324(A),
contingent upon her compliance with Arizona Rule of Civil Appellate
Procedure 21.




C R U Z, Judge, dissenting:

¶62          Contracts matter. Arizona’s Constitution protects individual
rights when it explicitly prohibits the impairment of contractual
obligations. Ariz. Const. art. II, § 25. Accordingly, I must respectfully
dissent.

¶63         The majority holds the trial court erred as a matter of law by
not awarding the embryos to Torres, even though:

   (1) Neither party disputes the enforceability of the Agreement between
       each other, see supra ¶ 36; and

   (2) Only the interpretation of the contract language is at issue, see id.,
       and a specific contract provision, which is entitled to greater weight
       under contract law, expresses the parties’ precise intent 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 pregnancy without the express,
       written consent of both parties . . . .” See supra ¶ 6.

¶64            As the majority concedes, the Note at the outset of Section 10
states that neither party may use the embryos to create a pregnancy without
the written consent of the other. In interpreting Section 10(H), however, the


                                     21
                            TERRELL v. TORRES
                             Cruz, J., dissenting

majority incorrectly concludes in paragraph 43 that a court interpreting the
Agreement can disregard the Note and proceed to allocate the embryos
according to a balancing test that is nowhere to be found in the Agreement.
In other words, the majority concludes that when called upon to decide a
question that the parties have addressed in the Agreement, the court is not
governed by that Agreement.

¶65            But 10(H) does not say that. Instead, it recognizes that, in the
case of a dissolution or separation, the Clinic can relinquish control of the
embryos only upon receipt of a court order or agreement. It is no surprise
that the form contract drafted by the Clinic would insulate the Clinic, for its
own protection, from the obligation of having to act in the event of a
disagreement between the parties. That is the meaning of the language in
10(H) that the parties checked, to the effect that a decree 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.” But
nothing in the Agreement states that a court is free to disregard the other
terms of the Agreement when it decides the question. Instead, 10(H)
recognizes that, upon dissolution or separation, the court does what courts
do: interpret the Agreement to decide the matter.

¶66            The majority concludes that because 10(H) refers to the
specific situation of a dissolution or separation, it should “control” over the
Note. But the Note itself specifically states that it applies in the event of
separation or divorce: “For example, in the event of a separation or divorce,
embryos cannot be used to create a pregnancy without the express, written
consent of both parties . . . .” Under the Note, the court may not allocate the
embryos to Torres because Terrell does not consent. Because the parties did
not check the box to signify their agreement that the embryos could be
destroyed, the only available option under the Agreement was donation to
a third party. Instead, the majority’s interpretation of Section 10 would
render a part of the contract—the Note—meaningless. That is, “in the event
of separation or divorce, embryos cannot be used to create a pregnancy
without the express, written consent of both parties,” is language wholly
cast aside because the majority now has balanced the interests in favor of
Torres. (Emphasis added.) See Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz.
463, 478, ¶ 56 (App. 2010) (stating the court should not construe one
contractual term in a way that renders another meaningless) (citation
omitted); Gesina v. Gen. Elec. Co., 162 Ariz. 39, 45 (App. 1988) (“Each section
of an agreement must be read in relation to each other to bring harmony, if
possible, between all parts of the writing.”) (citation omitted).




                                      22
                           TERRELL v. TORRES
                            Cruz, J., dissenting

¶67      The two options available to the parties—(1) allow one of the two
parties to use the embryos for pregnancy as to one of the parties, or (2)
donate them to another couple—are consistent with the parties’ selections
under additional sections of the Agreement, such as Sections A, B, D, and
E. Those Sections of the Agreement anticipate and provide for other
situations in which the Clinic would need to dispose of the embryos. Those
are discontinuation of IVF treatment, nonpayment of storage fees, age-
limited storage, death of a patient, and divorce or dissolution of the
relationship of the parties. Most notably, Section H is the only circumstance
of the five enumerated where the parties would be on opposing sides of a
lawsuit. No other circumstance, not even the death of a party, requires a
court order or settlement agreement for the Clinic to release the embryos.
Logically, as discussed above, because of the potential for legal exposure,
in divorce cases the Clinic requires the parties to produce either a court
order or settlement agreement before it will release the embryos to either
party. This requirement shields the Clinic from the risk of inadvertently
releasing the embryos to the wrong party or releasing the embryos to a
party who may use them to produce pregnancy against the wishes of the
other partner, in clear violation of the terms of the Agreement. On the other
hand, if the divorcing parties agree that one party may use the embryos for
implantation, a court order need not be provided, so long as the settlement
agreement displays the “contemporaneous permission” of the parties. This
interpretation of the IVF Agreement gives effect to Sections A, B, D, E, and
H without rendering any one of them meaningless.

¶68           Torres testified acknowledging the binding effect of the
contract, admitting “we did sign a contract and we agreed to these
provisions.” Because the Agreement requires the contemporaneous
permission of the other partner before one of them may use the embryos,
when it states that “in the event of a separation or divorce, embryos cannot
be used to create a pregnancy without the express, written consent of both
parties,” given that Terrell does not consent to the embryos being given to
Torres, Section H’s requirement directs the court to direct the Clinic to
exercise the only remaining alternative: that the embryos be donated to
another couple. Torres admitted she understood this to be the only
alternative under the Agreement and that her request to have the embryos
awarded to her was a request for relief outside the terms of the Agreement.
Torres’ own admission is telling:

      Q. What are you asking the court to order with regard to the
      embryos?




                                     23
                             TERRELL v. TORRES
                              Cruz, J., dissenting

       A. I’m asking the court to order that they be awarded to me
       with use or in the alternative to be donated just like the
       contract. I want—you know, we both made this agreement
       when we were okay. And I understand things didn’t go the
       way we planned—or at least the way I planned, I’m not sure.
       But we did sign a contract and we agreed to these provisions.
       We agreed to donate them. Never did we select to destroy
       them.

(Emphasis added.)

¶69           Here, the majority, instead of construing the contract in a way
that harmonizes all sections and is consistent with Torres’ own
understanding of their Agreement, interprets Section H to grant discretion
to a court presiding over a dissolution “to make the disposition
determination for the embryos in this case,” without concern for other
provisions of the parties’ Agreement. See supra ¶42. The majority
incorrectly concludes that Section 10(H) charges the court with deciding
between awarding them to either party or donating them to another couple
untethered to the constraints of the Agreement. Respectfully, I believe this
conclusion is wholly unsupported. If the parties intended to grant a court
the power to determine who should receive the embryos upon their
divorce, unconstrained by the other terms of their Agreement, the IVF
Agreement would have said so explicitly.

¶70             The IVF Agreement contains express language explicitly
prohibiting the result the majority reaches today. Specific provisions in a
contract are entitled to greater weight “because specific contract provisions
express the parties’ intent more precisely than general provisions.” ELM
Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 291, ¶ 18 (App. 2010) (citing Tech.
Equities Corp. v. Coachman Real Estate Inv. Corp., 145 Ariz. 305, 306 (App.
1985), and Cent. Hous. Inv. Corp. v. Fed. Nat’l Mortg. Ass’n, 74 Ariz. 308, 311
(1952)); see also Duenas v. Life Care Ctrs. of Am., Inc., 236 Ariz. 130, 140, ¶ 34
(App. 2014). The Agreement says that the “[e]mbryos cannot be used to
produce pregnancy against the wishes of the partner. . . . without the
express, written consent of both parties . . . .” (Emphasis added.) If the
parties intended that in the event of a divorce a court should be the ultimate
decisionmaker, their written agreement would state that the terms of the
Agreement have no effect in the context of a divorce. Likewise, if Torres
wanted to be permitted to use the embryos regardless of the Terrell’s
consent, she should have included such language in the Agreement or
otherwise made plain that she did not agree to the requirement that his
written consent would be required to make use of the embryos. By Torres’


                                       24
                            TERRELL v. TORRES
                             Cruz, J., dissenting

own testimony, we know Terrell was not her only sperm donor option.
Torres’ ex-boyfriend had previously agreed to donate his sperm. Whether
that ex-boyfriend would have agreed to donate his sperm without
limitation on her use of the resulting embryos, or whether any sperm
contribution by that ex-boyfriend would have generated embryos is
speculative; but the terms of the contract for obtaining Terrell’s sperm
contribution were clear, agreed to by the parties and memorialized in a
signed contract. Torres chose, despite having another donor option, to
enter the Agreement and IVF process with Terrell.

¶71           Not only do I disagree with the majority’s conclusion that the
Agreement granted the court the power to decide the issue based not on the
language of the Agreement but instead by balancing the parties’ interests, I
also disagree with the majority’s decision to balance those interests itself.
In so doing, the majority has not accorded due weight to the discretion of
the superior court to consider the evidence and decide issues of credibility.

¶72            Because it is a legal question, we review de novo the trial
court’s choice of a legal principle to apply. Pullen v. Pullen, 223 Ariz. 293,
295, ¶ 9 (App. 2009). However, because the weight to which a factor is given
is a factual question within the discretion of the trial court, the law requires
that we review the court’s weighing of factors in a balancing test for an
abuse of discretion, giving appropriate deference to the trial court’s ruling,
and we will uphold the court’s application of those factors if the court’s
decision is supported by sufficient evidence. Id. at 295-96, ¶ 9; State v.
Chapple, 135 Ariz. 281, 297 n.18 (1983) (“Something is discretionary because
it is based on an assessment of conflicting procedural, factual or equitable
considerations which vary from case to case . . . . Where a decision is made
on that basis, it is truly discretionary, and we will not substitute our
judgment for that of the trial judge . . . .”) (internal citations omitted).

¶73            Although we do not reweigh evidence on appeal, here the
majority holds the trial court erred as a matter of law in its application of the
balancing approach—in other words, it concludes the trial court correctly
decided to undertake to balance the parties’ respective interests but
weighed them incorrectly. This is clear from the majority’s listing of what
the trial court did wrong: “The trial court erred by improperly concluding
Torres’ ‘less than one percent’ chance of becoming pregnant through
normal means and the remote possibility of adoption or insemination with
a donor embryo negated her claims to these embryos”; “the court gave
insufficient weight to Torres’ desire to have a biologically related child”;
“the trial court erred when it placed heavy weight on the parties’ inability
to ‘co-parent’”; the court improperly weighed Torres’ decision to freeze


                                       25
                           TERRELL v. TORRES
                            Cruz, J., dissenting

embryos as opposed to just her eggs; and the court placed too much
emphasis on its findings regarding the parties’ marriage, calling the parties’
actions “impulsive and expedient.” See supra ¶¶ 47-50.

¶74           Under Davis v. Davis, the interests of the party wishing to
avoid procreation should prevail in such a balancing, assuming the other
party has a reasonable possibility of achieving parenthood by other means.
842 S.W.2d 588, 604 (Tenn. 1992). However, if no other reasonable
alternatives exist, then the argument in favor of allowing the partner to use
the pre-embryos to achieve pregnancy should be considered. Id. The lack
of reasonable alternatives does not automatically require the court to award
the embryos to the party seeking parenthood, but instead requires that it
weigh that fact along with the other interests of the parties to resolve
disposition of the embryos in a fair and responsible manner. Id. at 591.

¶75           Here, it is undisputed that when Torres signed the contract,
she understood and agreed that she could not use the embryos without
Terrell’s permission. Nevertheless, balancing her interests to use the
embryos against Terrell’s desire not to have Torres use the embryos to
achieve parentage, the trial court determined that Terrell’s right not to be
compelled to be a parent outweighed Torres’ right to become a biological
parent. Supporting its conclusion, the trial court found Terrell had an
interest in choosing not to parent a biological child with Torres outside of
marriage, would face a potentially significant financial responsibility of
raising children, and that Torres waived her interest in procreating with the
embryos created with Terrell’s genetic contribution by signing the
contract.12

¶76           The majority on one hand agrees with Davis and relies on it to
support application of the balance of interests approach, but on the other
ignores that Davis recognized “the right of procreational autonomy is
composed of two rights of equal significance—the right to procreate and
the right to avoid procreation.” 842 S.W.2d at 601; Eisenstadt v. Baird, 405

12     To the extent the court’s order was based on public policy, I agree
with the majority that it may have been an improper consideration, though
I agree that Terrell had an interest and right not to be forced to procreate
with Torres if he did not wish to do so. As the court found, Terrell testified
he did not intend to have children with Torres if they were not together,
and neither Torres nor Terrell presented evidence they discussed having
children together if the relationship ended, nor did they execute any further
agreements saying otherwise.



                                     26
                           TERRELL v. TORRES
                            Cruz, J., dissenting

U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right
of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as
the decision whether to bear or beget a child.”) (emphasis added) (citation
omitted). “The equivalence of and inherent tension between these two
interests are nowhere more evident than in the context of in vitro
fertilization.” Davis, 842 S.W.2d at 601. While crediting Torres’ interest
(right) in biological procreation and the difficulty she would otherwise
encounter if not granted the embryos, the majority disregards Terrell’s
interest (right) in not having biological children, though they both equally
extend from the same right of procreational autonomy—a “right to
procreate” and a “right to avoid procreation.” See id. at 601, 603 (emphasis
added); discussion supra Section II.B. Although the majority correctly notes
this case does not present the same type of government intrusion on the
parties’ personal decisions regarding reproduction, see supra ¶¶ 53-54, it
errs by separating the parties’ rights from the interests protected by those
rights.

¶77           Moreover, the trial court did not improperly discount Torres’
interest in having children. The court considered Torres’ “strong interest
in having a biological child,” and acknowledged “the evidence supports
that it would be almost impossible for [Torres] to become pregnant through
normal means of pregnancy and through the use of any existing egg.” On
the other hand, the court noted Torres could achieve parenthood by other
means.

¶78            The majority concludes “[t]he trial court overstated Torres’
ability to become a parent through means other than the use of the disputed
embryos.” See supra ¶ 48. In support of this proposition, the majority relies
on Dr. Behera’s testimony that “embryo donation involved being placed on
a long waiting list,” and on Torres’ testimony that she has thought of
adoption but her medical history makes it unlikely that she would be given
the opportunity to adopt a child. But the court heard no evidence, other
than Torres’ speculation, regarding her perceived inability to adopt
children. To be sure, Dr. Behera offered no testimony regarding the
likelihood that Torres could achieve parenthood through adoption.

¶79           In Davis, the court concluded that “if [the wife] were unable
to undergo another round of IVF, or opted not to try, she could still achieve
the child-rearing aspects of parenthood through adoption.” 842 S.W.2d at
604. While Torres asserts her desire to have biological children—an interest
entitled to some weight—the trial court found she can still adopt or seek
donation of other embryos, even if those avenues were more difficult.


                                     27
                            TERRELL v. TORRES
                             Cruz, J., dissenting

Arizona law treats biological children and adopted children the same.
A.R.S. § 8-117 (“On entry of the decree of adoption, the relationship of
parent and child and all the legal rights, privileges, duties, obligations and
other legal consequences of the natural relationship of child and parent
thereafter exist . . . as though the adopted child were born to the adoptive
parent in lawful wedlock.”). Torres may have a higher interest in biological
children and the trial court may give weight to her interest, but I am wary
of a judicial determination that a greater weight to biological parenthood
exists over adoptive.13 Furthermore, any medical concerns regarding her
ability to adopt a child or to raise adoptive children are similarly present
during pregnancy and biological child-rearing. And Torres was medically
cleared by her oncologist to become pregnant through IVF. Arguably, if
Torres’ medical history does not prevent her from achieving parenthood
through implantation, it should not act as a bar to adoption either. To
conclude Torres is likely unable to become a parent through adoption is to
step outside out role and reweigh the credibility of Torres’ self-serving
testimony. The trial court saw and heard Torres testify. As such, the court
was free to take all positions, significance of interests, and burdens into
account when making credibility determinations and resolving the
conflicting interests of the parties, including those of her prospective
children if Torres suffers future medical hardship. Davis, 842 S.W.2d at 603.
Therefore, the trial court gave proper consideration to Torres’ ability to
become a parent through adoption.

¶80            Also, while it is true that the possibility of a child support
obligation existed when Terrell signed the IVF agreement, the terms of the
Agreement protected him, in the event of a separation or divorce, from
incurring that financial responsibility without his express written consent.
Moreover, a father’s involvement with children may extend beyond simple
financial support, to the raising and caring for children in every way
contemplated by society, just as the mother’s involvement extends beyond
maternal care to financial support. The majority’s ruling also ignores
Terrell’s position that, given Torres’ connection to Terrell’s family and
friends, there exists a high likelihood that any children, potentially seven or
more of them, born of the embryos would be known to Terrell’s family and



13      Contra Reber v. Reiss, 42 A.3d 1131, 1139 (Pa. Super. Ct. 2012) (“There
is no question that the ability to have a biological child and/or be pregnant
is a distinct experience from adoption. Thus, simply because adoption or
foster parenting may be available to Wife, it does not mean that such
options should be given equal weight in a balancing test.”).


                                      28
                            TERRELL v. TORRES
                             Cruz, J., dissenting

friends, forcing him to choose between accepting parenthood or crassly and
openly avoiding it. The trial court properly weighed these factors.

¶81            Notwithstanding the contract, the trial court balanced the
competing interest of the parties. Still, consistent with the parties’
contractual Agreement, the court awarded the embryos to the IVF center to
allow another couple to bring them to life. The majority reweighs the
evidence to reach a different result. For the foregoing reasons, I dissent
from the majority opinion vacating the trial court’s order and directing the
trial court to award Torres the embryos based on the majority’s own re-
weighing of the parties’ interests.

¶82            I further dissent as to the form of relief granted. If we
conclude the court erred as a matter of law when it improperly weighed
Torres’ interests, then, rather than putting ourselves in the position of fact-
finder by weighing the interests of the parties, we should remand this
matter to the trial court for a proper weighing of the interests. See, e.g., Owen
v. Blackhawk, 206 Ariz. 418, 423, ¶¶ 22-23 (App. 2013) (remanding upon
finding the trial court failed to properly consider father’s engagement and
certain related evidence, with instructions to the trial court to give such
evidence “full consideration”). It is not our role as an appellate court to
invade the factual province of the superior court and balance the interests
of the parties ourselves.

¶83           Do contracts matter? I believe they do. Therefore, because
the contract of these parties explicitly prohibits the outcome reached by the
majority, and because it is outside our purview to reweigh the evidence, I
would affirm the trial court’s judgment, or, in the alternative, remand the
matter to the trial court for a new weighing of the parties’ interests.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA




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