What This Statute Says
This section is one of Arizona's most distinctive family law rules. When dissolution involves in vitro human embryos, the court must award them to the spouse who intends to permit them to develop to birth. The rule takes precedence over earlier agreements that may have contemplated destruction or indefinite storage.
A. If an action described in section 25-318, subsection A involves the disposition of in vitro human embryos, the court shall:
A.R.S. § 25-318.3When This Statute Comes Into Play
This rule comes into play when:
- A divorcing couple created embryos during fertility treatment that remain frozen at the time of dissolution.
- The spouses disagree about what should happen to the stored embryos.
- Estate planning documents need to account for embryos that may produce a child after the proceeding ends.
What This Means for Arizona Families
Reproductive technology has outpaced traditional estate planning frameworks. Frozen embryos are property under some legal regimes and potential persons under others. Arizona has chosen a clear rule that emphasizes the possibility of birth, which has profound implications for estate plans drafted before or after the dissolution.
If your dissolution involves stored embryos, this section will likely control the outcome. Our FAQ on including future children and grandchildren in an Arizona estate plan covers the related question of how to plan for children born after the will or trust is signed. An Arizona family law attorney working with an estate planning attorney can coordinate the dissolution outcome with updates to the will, the revocable living trust, beneficiary designations, and any specific provisions for posthumously conceived children. The rule in this section often surprises clients who had different intentions for the embryos when they were created; planning early avoids leaving the issue to a contested hearing.