Show Topic
This show aired on August 6, 2017. It was hosted by David Enevoldsen, a partner with Family Law Guys. Guests included Debbie Levine and Ruby Torres. Ruby discussed her personal case involving a divorce with a fight over ownership of embryos after she was diagnosed with cancer. Debbie discussed some of the legal aspects of embryo ownership in a divorce.
Guest Information
Guest on this show were Debbie Levine and Ruby Torres. Debbie is a family law attorney. Note that since the airing of the show, Debbie’s contact information has updated. She currently works for Debora M Levine PLLC, located at 7702 East Doubletree Ranch Road, Ste. 300, Scottsdale, Arizona 85258. Her phone number is 480-905-5616.
Ruby is a personal injury attorney and can be reached through the Thompson Law Firm, www.phxinjurylaw.com or 602-323-0299.
Headlines
Headlines on this show looked at the kidnapping and recovery of the children of Ishrat Jahan, one of the women that challenged the practice of triple talaq in India and that played a role in the eventually banning of the practice there and the publication of a report from the Tahirih Justice Center on the problems and statistics related to child marriage in the United States.
Transcript
Announcer: The discussions and information provided in Family Law Report are intended to be general in nature and are not directed for any individual circumstances. No attorney client relationship is being formed through this program. If you need legal advice, your particular circumstances can vary from what is presented here, and you should seek the advice of an attorney licensed to practice in your state.
Announcer: Welcome to the Family Law Report, the show that explores issues related to marriage, divorce, and children, hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now, here’s your host.
David E.: Hello everybody and welcome to Family Law Report. I am your host, David Enevoldsen, here with you every Sunday at noon on Independent Talk 1100 KFNX. Here on Family Law Report, we talk about all the current topics of family law, and that can range from what’s happening in the political arena to just basics, like how to work through the nuts and bolts of a divorce. I am a practicing attorney, and I, of course, work in the area of family law. When I say family law, I mean basically anything related to marriage, divorce, fights over custody of children, prenuptial agreements, child support issues, grandparent rights, all of that sort of thing. I’m a partner at a law firm here in Arizona called Family Law Guys, and we focus principally on helping divorcing parents avoid getting screwed out of time with their children.
Now, I always start now with this admonishment that if you have a family court issue, there are a lot of potential traps. There’s a lot of very dangerous things that can happen in a family court case. I have seen cases where people have completely lost their children. I have seen cases where people have walked out with massive child support payments or alimony payments. I’ve seen people get slapped with tens of thousands of dollars in judgments for back child support or equalization payments or attorney’s fees. I have even seen people get physically dragged out of courtrooms in handcuffs and thrown into jail over things like child support.
So, if you are facing whatever family court case, if you’ve got a child support issue, a custody matter, a divorce, whatever it is, there are some very real traps, and I highly suggest that you go and talk to an attorney, and even if you can’t afford to fully hire an attorney, spend some money to just spend an hour talking to an attorney so you know your basic legal rights and obligations. Obviously, you can do that with our firm, but if not us, do it with someone, just some family law attorney that knows family law. If you want to contact us, I work for Family Law Guys, and while we don’t practice outside of the state of Arizona, you can call us to schedule an appointment and you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
On today’s show, we are going to be talking about rights to embryos in divorce cases in Arizona, and I have with me two guests, I’m excited to have them both here, Ruby Torres, and her attorney, Debbie Levine. Thank you both for being here.
Ruby Torres: Thank you for having us.
Debbie Levine: Good afternoon, David.
David E.: You’ve got to say thank you, too.
Debbie Levine: I have to say thank you. Thank you, David.
David E.: We’re going to talk to them all about Ruby’s case and some of the law surrounding that in just a sec. First, we’re going to hit our headlines, and in headlines, we just cover stuff that’s going on right now related to family law in the press. First off, we have a headline that’s kind of the continuing saga of the triple talaq story, and if you’ve been listening to past shows, you’ve heard me talking quite a bit about the triple talaq thing. If you haven’t, just a quick refresher. Triple talaq, it’s been a blooming issue in India, in particular, and the whole idea is that it’s an old Muslim practice that would allow a man to divorce a woman simply by saying talaq three times, and talaq is the Arabic word for divorce. So, a man could basically just say, “Talaq, talaq, talaq,” and the parties are automatically divorced.
Now, there’s quite a bit of outrage around this process, because it was still being recognized in India up until recently, because it was leaving women out on the streets. They were losing property rights, they were losing rights for maintenance and children and all of this, it was just an automatic divorce without any kind of process associated with that. There were also a lot of ancillary problems, which I’ve talked about in past shows, so I won’t hit it too hard, but the case ended up going up to India Supreme Court, and they in the past couple weeks issued a ruling saying that it was now outlawed in India. Now, the story for today is coming from kind of a continuation of one of the cases that went up to the Supreme Court. Now, that is to say that there were five separate cases that were consolidated going up to India Supreme Court that they were looking at, and one of those was with a woman named Ishrat Jahan.
Now, last week, we had a headline on her because after the ruling came out, there was a report from her and her lawyer, who had gone to the chief minister in their state in India, and were saying that she had been getting harassed, taunted, threatened. She was going to the police, everyone was ignoring her, and she was scared for her life. Apparently, there was also threats on her attorney. There were some comments coming out on social media, and everybody was just very angry with her about her role in the outlaw of the triple talaq system.
Well, since then, the kind of new update with this whole story is that she ended up going to the police this week and complained that two of her four children had been kidnapped by her husband. So apparently, she went home, couldn’t find her kids. Her in-laws were there and they said that her ex-husband had taken them, so she tried to reach out to him, was unable to get a hold of him, and ultimately talked to the police, who did find the kids. Shortly after she filed the complaint with the police, the police went out to the husband’s home, I guess, which was about 100 kilometers away, which translates to about 62 miles away from where she was, and they found the kids.
So she ended up getting the kids back, but it’s just kind of this continuing saga of the whole triple talaq thing that’s been going on, which we’ve been covering for quite a while, and I think it’s also an interesting highlight in that we’ve seen, when we have a lot of these very controversial things that we get rulings on, that isn’t the end of the story. Things don’t just end the second you get a ruling saying one thing one way or another from a Supreme Court. For example, we’ve had the Obergefell decision, which was the US Supreme Court opinion that talked about the legalization of same-sex marriage in the US, but as we’ve all seen, there’s tons of aftereffects. Just because the ruling comes out doesn’t mean that there’s no more vitriol or that there’s no more issues to kind of work through, and I think we’re seeing that in India right now, so we’ll keep monitoring the triple talaq story as it continues to unfold.
In other news, there’s an organization called the Tahirih, and I apologize if I’m mispronouncing this, the Tahirih Justice Center, and they just put out a report on child marriage in the United States. Now, the Tahirih Justice Center is a national nonprofit. It’s focused on ending crimes against women and girls, and the report that they just issued is entitled Falling Through the Cracks, and in it, they describe some, what I find disturbing statistics.
Now, we’ve talked a little bit about child marriage in the US on some past shows. One of the major concerns is that there are a number of laws in pretty much everywhere in the US with only a very small number of exceptions, that will allow children to get married, and it’s usually by some sort of parental consent. One of the major objections … There’s a lot of objections to it, but one of the major concerns is that it’s usually spawning out of a situation where there’s some sort of statutory rape. So that is to say an adult is having intercourse with a minor and then they get married so as to avoid statutory rape charges.
Well, some of the stats that were in this report included things like the fact that between 2000 and 2015, there were over 200,000 children that were married in the United States. Most of the children were girls, and most of them were being married to adult men. There are currently 25 states, including Arizona, that have no minimum age to get married. There are actually only three states in the United States, and that includes Virginia, Texas, and New York, that have actual restrictions that say only adults can get married, that you can’t have children getting married at all. It goes back to what I was saying a second ago about pretty much everywhere in the US we’re recognizing this.
The report itself is very focused on raising awareness of the problems of child marriage and there’s a number of things that it goes into. For example, it talks about some of the psychological problems. It says that women who have gotten married as children are far more likely to be diagnosed with psychiatric disorders when they’re adults than other women. One of the many objections, as I said a second ago, is about statutory rape, and there are, let’s see, nine states that statutorily allow a child that is pregnant, that fact in and of itself can be the reason to lower the minimum age required for that girl to get married. So that almost seems like the law in those situations is catering to the statutory rapist to allow him to get out of this whole statutory rape criminal charge by just marrying the girl that he’s impregnated.
Other interesting data in the report, there’s between 70 and 80% of child marriages result in divorces. A teen mother that gets married and later divorces has a double likelihood of living in poverty. Girls who get married before the age of 19 are 50% more likely to drop out of high school and are four times less likely to graduate college. So there’s a lot of very potential negative things that go on with the child marriage issues.
The more I talk to people about it, the more I think nobody even realizes that these rules are out there, and there’s a kind of dangerous cycle in place, because you’ve got a child essentially who’s being thrust into a marriage where she’s still a child, and again, most of these are through girls marrying adult men, and most of the time, it’s just to avoid a statutory rape charge, and most of the time, it’s with the consent of the parents, so there’s really nowhere that the child can even turn to get out of this whole thing or turn to anybody, because her parents are pushing for this to happen because they’re giving the permission, the abuser is saying, “Let’s go along,” so now you’re not only taking this person who with all the statistics here are far more likely to end up with all sorts of problems, psychological problems, the marriage is probably going to result in divorce, now you’re sticking this person with the person that raped them in the first place, and so it seems very problematic and it seems like there’s a burgeoning awareness of what’s going on. There’s a number of groups that have been popping up, including this Tahirih Justice Center, which has been focusing quite a bit on it. Are you guys, have you heard about all this?
Debbie Levine: I have not, actually.
David E.: Okay. I find it all quite interesting.
All right, we are going to take a quick break. I am attorney David Enevoldsen with Family Law Guys. When we return, we’re going to be talking about rights to embryos in a divorce case. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk 1100 KFNX.
Speaker 7: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more, or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
David E.: Welcome back to Family Law Report. I am your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts or tell me how amazing I am or anything like that, you can do so by calling 602-277-KFNX, and today we’re going to be talking about rights to embryos in a divorce case. I’m going to actually skip our Did You Know, which usually we do kind of a trivia bit called Did You Know. I just want to make sure we’ve got enough time, because today I have with me two guests I’m excited to have, both Debbie Levine and Ruby Torres. Now, both of you are attorneys, correct? Although in different areas of law. Yes?
Ruby Torres: Yes.
Debbie Levine: Yes, we both are.
David E.: Okay, so if … I’ll give you both a chance to plug here. So Ruby, if somebody wants to reach out to your firm, and you do personal injury?
Ruby Torres: I do personal injury with the Thompson Law firm.
David E.: And how would somebody reach you if they wanted to do so?
Ruby Torres: Our phone number is 480-634-7480, and our website is phxinjurylaw.com.
David E.: Cool, thanks, and Debbie, if somebody wants to reach out to you, and you do family law, correct?
Debbie Levine: I do family law, yes.
David E.: And so how would they get ahold of you if they wanted to reach out to you?
Debbie Levine: They can call us at 602-253-5880, or we have our website, www.levinelawgroupaz.com.
David E.: Okay, great. Thank you. All right, so today we’re talking about, as I said, embryos in a divorce case, and what happens with those when you’re going through a divorce, because when you’re going through the divorce, of course, we’re dividing up property, dealing with children and that sort of thing. Ruby, you’ve just been through this exact situation where you had a divorce and you were dealing with who gets rights to embryos. Is that correct?
Ruby Torres: That is correct.
David E.: So maybe we can start with just you kind of giving us some background about what happened with the marriage and what led up to everything that went down.
Ruby Torres: Okay. So my then-boyfriend, and I’m saying by then in 2014. We actually started dating in 2009.
David E.: Okay.
Ruby Torres: In 2014, I was doing a self exam, and we’d been dating for that timeframe, and I noticed a bump, a lump on my breast. So I went to the doctor’s and did a mammogram, did everything that was needed to be done, biopsies and underwent all of that treatment. My ultimate diagnosis-
David E.: So to be clear, at this point, you’re not married, right? You were-
Ruby Torres: At this point, we’re not married, no. Actually, we didn’t get married until right before my chemo started.
David E.: Okay.
Ruby Torres: So my ultimate diagnosis-
David E.: Did you have kids at this point? Or no kids?
Ruby Torres: We have no children together, and I don’t have any children at all. Neither does he.
David E.: All right. Okay, sorry to cut you off. Go ahead.
Ruby Torres: No, no worries. No worries.
David E.: Okay, so you’re unmarried, you’ve got the boyfriend, you discover this lump.
Ruby Torres: Yes.
David E.: Okay, so go ahead.
Ruby Torres: And ultimately get diagnosed with bilateral breast cancer, specifically triple negative, which means it does not respond to any type of hormones, so my cancer is an aggressive form of cancer. So I went to an oncologist … Actually, I went to two different oncologists, and one of those doctors referred me to a fertility specialist. And the reason for that is that once you undergo chemotherapies, the chemo will put you into what is called chemo-induced menopause. So I had a month and I met with the doctor, a fertility specialist, on July 2nd.
David E.: What’s the significance of the chemo-induced menopause?
Ruby Torres: The significance is that even though you have the likelihood … your ovaries will be shut down. Not only that, but as a result of chemo, you ovaries shut down, but your ovaries are also damaged. So there is no guarantee that once you complete your chemo course, you will be able to ever produce eggs again or even restart your ovaries to come back to functioning.
David E.: Gotcha.
Ruby Torres: So that was what I was facing, and so I was recommended to meet with a fertility specialist. So I went and met with a fertility specialist on July 2nd, and we talked and she discussed with me my options-
David E.: And this is still back in 2009?
Ruby Torres: This is 2014.
David E.: 2014, oh, okay.
Ruby Torres: Yes, so I was diagnosed with bilateral breast cancer on June 18, 2014. I was 33 years old at the time, and so because of my age and because of the chemo that I was going to have to undergo, there was no guarantee that my ovaries would come back. Okay?
David E.: Okay.
Ruby Torres: So I go to the fertility specialist, we discuss my options, and those two options are A, I can freeze just eggs, or B, I can freeze embryos. We can have cryopreserved embryos or cryopreserved eggs.
David E.: And this is with the hope that if you’re going through the chemo and you’re unable to basically produce eggs in the future, you’d still have them there to do something so that you could have children, because you didn’t have children, correct?
Ruby Torres: Yes, that is correct. So it was with the hopes that once I was done with treatment, my body would, if it did come back, I could still use them, and if they didn’t come back, then I’d still have the opportunity to use the embryos or the eggs.
David E.: Gotcha.
Ruby Torres: Now, the purpose, what my doctors explained to me is that with the research and everything, eggs actually are not, they don’t preserve well. So had I even preserved my eggs, at the time that it came time to use them, they may not actually be viable. Even though technology has advanced a lot and research has changed, the best guarantee to ensure that I could potentially have a child would be to create embryos, that eggs are not that-
David E.: And the distinction between these is that the egg is just unfertilized, correct?
Ruby Torres: Correct. The distinction is the eggs are just my sole property. The embryos are combined with a donor sperm and created into … they develop actually for seven days. So on July 11th … My boyfriend initially-
David E.: Can I back up a second, just so I can ask a question?
Ruby Torres: Sure.
David E.: So you’re talking to the fertility specialist and they say, “Okay, you’ve got these two options. You can take either eggs or actual fertilized embryos. The eggs don’t preserve as well.” Was there an option to do both, or is the procedure in getting them so involved that it doesn’t make any sense to do it that way?
Ruby Torres: There is an option to do both, but unfortunately, none of my eggs were able to be preserved. I can’t recall if the option is that you can select … You can select half and half, but because I didn’t have enough eggs … I only had 14, so the doctors, and I get to make the selection if I want to preserve eggs, but if the doctors see that with the number that I have, it’s more …
David E.: I see. I see. Just because there were so few, basically, that if you were throwing some of these into just eggs, which have a much lower probably of staying alive in stasis, I guess, then you’re basically cutting against the fertilized eggs, which you only have a limited number of-
Ruby Torres: Yes.
David E.: … that are more likely to stay preserved.
Ruby Torres: Yes.
David E.: Okay. Just want to make sure I understand.
Ruby Torres: Yeah, no, no worries. And I should mention, of the 14 that I had and that were combined, only seven survived.
David E.: Oh wow. Okay.
Ruby Torres: So it wasn’t that there’s 14 embryos. Only seven of those 14 embryos actually developed into embryos, and what they do is when they were created … So I had to be put under and it is a procedure to extract the eggs, I guess you can call it. I don’t know the medical term. But-
David E.: We get the idea.
Ruby Torres: … of those 14, only seven developed, and they developed for seven days. Even my doctor testified at trial that they can tell the viability of those embryos, so they are graded. Of those seven embryos that are good, only about two of them have a potential of ever developing. The rest … the other seven didn’t develop into embryos, so they basically were discarded.
David E.: Gotcha.
Ruby Torres: And so let me back up a little bit. So my boyfriend and I, initially when I asked him to do this with me, he refused. He completely said no, he didn’t want to. And then when I approached him again and told him, “Well, you know, I have somebody else who’s willing to be the donor. It would just be a donor, nothing attached. No … They were just donating.”
David E.: And so at this point, was your primary concern just that you were thinking, “Okay, I’m going to be going into chemo. I’m never going to have a chance to have kids again, so I want to preserve that option out there,” is that what you were thinking?
Ruby Torres: That’s what I was thinking. I want to preserve my right to have a child someday in the future.
David E.: Gotcha.
Ruby Torres: And when he said no, it hurt, but I was okay because I had another donor, and then he agreed finally. On July 11th, he went in, he signed the paperwork on the contract, and this is my boyfriend, John. We’re still dating. We’re not married. We’re not even living together, and we signed the contract. Five days later … Well, four days later, I apologize, we got married, and 15 days after our marriage is when the embryos were created.
David E.: Okay. So tell me a little bit about the contract. You said you signed a contract. That’s just with the fertility clinic? Or …
Ruby Torres: It is with the fertility clinic, and both he and I go in and you meet with someone, with one of the specialists. You select the options. We had discussed this contract. I had taken a copy home to him so he could read it and had an opportunity. It gives you different sections, and unfortunately, that’s what I focused on, the sections that you have to elect. So in the event that I die, he gets the embryos. In the event that he dies, I get the embryos. In the event that we both die, the embryos will be preserved and donated. And then the very last one part of this contract is what occurs in the event of a separation or a divorce, and in that case, we elected to either A, we would wait for the judge to make a determination if we couldn’t come to an agreement, and of that, the judge determinations could be they could award them to him, they could award them to me, or they could be donated.
David E.: Okay. I think that all makes sense. That’s quite a bit of information, but we’re going to take a quick break. Again, I’m attorney David Enevoldsen with Family Law Guys. When we return, we’re going to talk more to Ruby and then to Debbie at some point here about some of the legalities of these issues of rights to embryos in a divorce case. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk 1100 KFNX.
Speaker 7: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more, or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
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David E.: Welcome back to Family Law Report. I am your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, you can do so by calling 602-277-KFNX, and today, we’ve been talking about rights to embryos in a divorce case. I’ve got with me Debbie Levine and Ruby Torres, and Ruby, you’re an attorney and we’re not exactly talking about this, but you do personal injury, so one more time, if somebody wants to reach out to your firm, how do they do so?
Ruby Torres: I work for the Thompson Law Firm. They can give us a call at 480-634-7480, or reach us at phxinjurylaw.com.
David E.: Okay, and then Debbie, you do family law. If somebody wants to reach out to you, how would they do so?
Debbie Levine: I work for Dennis P. Levine, PC. My phone number is 602-253-5880, and my website is www.levinelawgroupaz.com.
David E.: Okay, cool. Thank you. All right, so before we went to break, Ruby, we were talking to you about kind of the stuff that was leading up to basically I guess pre-marriage and into the beginning of the marriage, where you found out you were going to be going through chemo because you had a pretty aggressive cancer, and correct me if I’m misspeaking on any of this, I’m just kind of summarizing what we talked about. So you ended up going to a fertility specialist, you decided to preserve some of your eggs, but did so as embryos instead of just eggs, meaning that they were fertilized because you had a very limited number and that was the best way to preserve them from what you were being told. So you end up approaching your boyfriend, he gets on board with it, you guys sign a contract with the fertility clinic, and you proceed forward and seven of the 14 embryos that you had were preserved. Is that all correct?
Ruby Torres: That is correct.
David E.: Okay, so now maybe we can continue the story a bit. So you end up getting married and it was, you said, a few days after you got married that all this happened?
Ruby Torres: It was actually four days after we signed the contract that we were married.
David E.: Okay, four days after you signed the contract, and then when were the embryos …
Ruby Torres: So we got married on July 15, 2014, and the embryos were created July 31st of 2014. I was scheduled to begin chemotherapy, August 7th was my first chemotherapy, of 2014, which is why my oncologist, who oversaw my treatment, only gave me a month, because I was diagnosed in June. She said, “I will give you 30 days, that’s it, and we need to start your treatment.”
David E.: Gotcha. So you had a little bit of delay there just to make sure that you could do this whole embryo thing.
Ruby Torres: Yes, the only delay was the 30 days, there are 31 days in July, because I was actually supposed to begin chemo the second week of July because we had that holiday weekend.
David E.: Okay, so tell me a little more about this story, then. So I guess maybe we can start with that, what happens with the chemo and the cancer issues.
Ruby Torres: So I underwent chemo from August to December of 2014. I did a total of three different chemotherapies, one of which is called the red devil, one is Taxol, and one is carboplatin. So I underwent chemotherapy for those, I think it’s 14 weeks, I’m not sure … 12 weeks, I apologize. I had to undergo a blood transfusion because during my chemo treatment, my blood counts dropped too low. I also, one of the side effects was I had Taxol burns all over my body as a result of the chemo, and so we had to kind of stop my chemotherapy and back down a little bit.
David E.: Geez. It sounds awful.
Ruby Torres: It was. It was, but I knew I needed to get through it. I had to move forward with my life and I had to beat this. It wasn’t something that I was going to give up that easily, and I’ve never given up. So I completed my chemotherapy December 23rd of 2014. For Christmas, I got a blood transfusion. That was very entertaining.
David E.: Merry Christmas.
Ruby Torres: Merry Christmas to me. And then in February of 2015, I underwent a double mastectomy with reconstruction and lymph node removal. The pathology came back on that that I actually had positive lymph nodes on my left side, and so I had to undergo radiation treatments. I did that, I completed radiation on May 20th of 2015. I should mention, you know, we were married. I moved in sometime in October, once everything kind of got settled down, with my then-husband, John. Unfortunately, he wasn’t there for any of my treatment or my surgeries. And I should mention, as well, that-
David E.: Well, maybe before we jump into the actual … let me talk about that in one sec, but just so we have a clear story on the cancer component of this, where did that end up?
Ruby Torres: So on the cancer-
David E.: There’s some strange music there. I don’t know what that is.
Ruby Torres: On the cancer component, so I should’ve backed up. One of the other things that resulted during my treatment was that I was found to be genetically predisposed. So I have the BRCA1 gene mutation.
David E.: So just to be clear, if you heard that music there, that was just a technical error. It was not related to your story at all. We were not trying to make fun of it or anything.
Ruby Torres: No, no, no.
David E.: So my apologies. Anyway, sorry. Back to the question there.
Ruby Torres: So we also did, my oncologist recommended genetic testing, and it was found that I’m BRCA1 positive, which means I have a genetic mutation in my chromosome. Any child of mine can have a 50/50 chance of carrying that gene mutation. Most people know it as the mutation that Angelina Jolie has. So I finished chemotherapy and radiation and had my bilateral mastectomy, but I was also required to … Because of my genetic mutation, I will actually have a higher reoccurrence rate of cancer, and so I also had to undergo a second surgery as a preventative to prevent the cancer from spreading, because the next place that my cancer is going to develop in is my ovaries.
Based on another oncologist that I have, it’s an OB-GYN specialist oncologist, he recommended that the research states that the cancer will begin in my fallopian tubes. So in March of 2015, I also underwent a surgery to remove my fallopian tubes in order to prevent the cancer. It is recommended that I should’ve had a full hysterectomy, but because I had those embryos and every conversation that I’d had with my then-husband indicated that I would be able to have those embryos and carry a child, I elected just to have the fallopian tubes removed.
David E.: Okay, and maybe just in the interest of time, because I want to make sure we get to all this stuff, so how did this end? At the end of the day, is it relatively dealt with? I mean, is it under control? What’s going on with the cancer now?
Ruby Torres: You can’t actually control my cancer. I am in remission, but you cannot control it. Other cancers can be controlled with hormones and medication. My cancer cannot be controlled. I just have to make sure I exercise, eat well, and try to take care of myself and not eat too many sugars, just take care of me. But I am in remission. All of my, I go to my oncologist every three months. I have to have ultrasounds every six months, but I just make sure, and everything so far has been good. My blood work shows that the cancer markers are either going down or staying leveled, so there is no increase in the cancer, so I am what people would call in remission.
David E.: Okay, so I guess in layman’s speak, then, you’re-
Ruby Torres: I’m okay.
David E.: … better now?
Ruby Torres: Yes.
David E.: All right, now so you’ve got all this backdrop. You had creation of the embryos, you ended up getting married, you went through all this stuff, it sounds like a lot of horrid stuff, with respect to the cancer. Tell me about, just briefly about the marriage, like what happened throughout that?
Ruby Torres: Well, I guess you can put it the same way my counselor told me. I created an illusion. I was happy. I tried to work out our marriage. My husband wasn’t there for any of my treatment or anything like that. I discovered in late 2015, in September of 2015, that he had actually been having an affair with another woman that was married, since 2008. And again, we met in 2009. I tried to work out. We tried to continue to work our marriage out. He did tell me he would never do it again. He was subsequently caught again with the same woman three more times, the last one of those being they had hotel reservations the day I buried my father. So and then moving forward to April, I still tried to work out my marriage. That was in February of 2016. In April, it ended in an assault where I was injured and so I left the home, and asked him to file for the divorce.
David E.: Okay, so then of course, divorce ensues.
Ruby Torres: The divorce ensues.
David E.: Is it possible for you to, because I want to spend most of the last segment here and we’re almost to a commercial break, is it possible for you to just very quickly summarize what happened through the divorce process?
Ruby Torres: I think so. Through the divorce process, I thought we would have a simple divorce, we’d agree to everything and each go our separate ways. Unfortunately, he wanted to fight for half of everything I had. We finally came to an agreement in mediation on most things except for my dog, Angel, and the embryos. So the whole time, he just fought everything. I had hope that we would …
David E.: So at the end of the day, the big issue, it sounds like, that went to trial, aside from the dog component of this, was the embryos, right?
Ruby Torres: Yes.
David E.: All right, so and then that ended up getting litigated, you went to a trial on it, and the judge has issued a ruling. Is that all correct?
Ruby Torres: That is all correct, yes.
David E.: And maybe we should, we’re about to jump to a break here, so maybe I should hold off actually saying what the judge said, and then we can jump directly into the legal stuff right after the break. Does that sound decent?
Ruby Torres: Sounds good.
David E.: All right. We are going to take another quick break. I am attorney David Enevoldsen with Family Law Guys. When we return, we’ll be talking further about the rights to embryos in a divorce case. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk 1100 KFNX.
Speaker 7: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more, or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
David E.: Welcome back to Family Law Report. I am your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share thoughts, you can do so by calling 602-277-KFNX, and today, we’ve been talking about rights to embryos in a divorce case. Now, I have with me guests Debbie Levine and Ruby Torres, and Ruby, we’ve been talking to you about kind of your story that’s kind of led up to the actual legal component of this. Before we jump into this, real quick, one more quick plug, if somebody wants to reach out to you or your firm, which does personal injury, which isn’t really related to what we’re talking about, but nonetheless, since you’re here, how would they reach out to you?
Ruby Torres: So I work for the Thompson Law Firm, and our office number is 480-634-7480. Our website is phxinjurylaw.com.
David E.: All right, great. Thanks. And Debbie, if somebody wants to reach out to you, how do they do so? And you do family law.
Debbie Levine: I do family law. I work with-
David E.: I guess it should be obvious, since you represented Ruby in this family court case, but at any rate, sorry. How would they reach out to you?
Debbie Levine: I work at the law office of Dennis P. Levine. Our number is 602-253-5880, and our website is www.levinelawgroupaz.com.
David E.: Perfect, thanks. All right, so right before we went to break, we were talking about kind of the whole story that led up to, and it sounds like the ultimate issue at the end of the day that went to trial in Ruby’s case was the embryos, and I guess also the dog was a major issue. Who ended up getting the dog, by the way? I’m just …
Ruby Torres: I did.
David E.: Okay.
Ruby Torres: My dog was my sole and separate property.
David E.: Oh, that’s good. All right. So then with respect to the embryos, so this sounds like that was the major point of contention. Maybe I can roll this over to you, Debbie. What happened in the ruling, with respect to the embryos?
Debbie Levine: So the judge ultimately decided that the embryos would be donated, and she used that coming from a provision within the contract. Need to back up probably a little bit and say that in Arizona, this is a case of first impression, and-
David E.: Now, when you say donated, you mean that’s to just some third party, as opposed to either Ruby or her now-ex-husband?
Debbie Levine: That’s correct. Third party or a couple.
David E.: Okay.
Debbie Levine: This is a case of first impression, so there’s no law in Arizona about embryos or what to do with them. In fact, even nationwide, there’s limited law regarding this issue. So the judge decided, after reviewing the contract, that she had to do what’s called a balancing test, and that’s because in the contract, there were contradictory provisions. The contract first stated that no embryo would ever be implanted without the consent of both parties. Yet in the disposition for dissolution, it specifically said per a court order, it could be awarded to husband with the right to achieve pregnancy if he wished to use them in presumably a surrogate or maybe a future spouse, or to my client, wife, with the right to use them, or to be donated to a third couple with, again, the provision that it would be used to achieve pregnancy. The other option, which was not selected by my client or husband, was to destroy them, but ultimately, we ended up in court because husband took the position that he wanted them destroyed.
David E.: Interesting. So now, one question that I was reading through some of the stuff beforehand that maybe we can clarify for people listening, there was some discussion in here about whether to treat the embryos as property or whether to treat them as children or there was even some references to special property. Can you explain that a little bit? Like what … How are we dealing with these? Are they pieces of property? Are they children? Are they something in between? I mean, do you have an idea?
Debbie Levine: So again, Arizona lacks any direction, absent some that are in the criminal statutes, that talks about what you can’t use an embryo for, so they looked at these in the contract, turning back to the contract, there was a specific provision that said the husband and wife agree to treat these as property, so ultimately, that is what the judge decided to treat them as property. However, yes, wanted to treat them as something a little bit different than just a dog or dishes or furniture, but came up with this idea that they’re special property, because they’re something a little bit more than something that you can put a value on, but not quite a full person.
David E.: Now is this, so one of the approaches, you said, was the balancing test, and this is what the court actually ended up utilizing at the end of the day. Was this balancing test something that’s coming from … Did she just make this up, or did it come from a different jurisdiction? Or …
Debbie Levine: It came from different jurisdiction. One case that was of particular interest to my client and I came out of Pennsylvania, and they used a balancing test and they weighed the interests of wife to have children over husband’s right to not have children.
David E.: Now that I find very interesting, because it does seem that … I mean obviously we have significant concerns about your ability to procreate. Right? That speaks back, to me, to some constitutional rights, like we have in many other contexts, a fundamental constitutional right to procreate, to have children.
Ruby Torres: Right, and that’s correct, and my doctor, we did do blood tests to prove whether or not I could, because that was one of my ex-husband’s arguments, that I could have more children with somebody else. Unfortunately, I am in menopause and the way my doctor explained it, it would be a miracle baby if anything, if I were to pay again to re-stimulate my ovaries, it’s not going to be a successful stimulation, so I have no way of ever having a biological child at this point in time.
David E.: Gotcha.
Debbie Levine: And our position was that husband knew he was creating … I mean, when he offered to be a sperm donor, he knew he was basically creating embryos that could result in a child.
David E.: And to me, something that struck me as I was thinking about this was one of the counterarguments from the husband, as I understand it, and correct me if I’m misspeaking here, is that his interest countering your right to procreate is his right to not procreate. That is to say, he’s saying he has an interest in not intentionally taking on this financial obligation and parental obligation and having to co-parent and having to pay child support and whatever else goes attendant to having a child. Is that correct? Was that one of his …
Debbie Levine: Yeah, that was his position, yes.
David E.: And one of the things that stuck me was it almost sounded like, and maybe this is just my analogy, but it almost struck me that this is kind of like saying, “I have a right to have a woman have an abortion,” and I know this is a little different, because you didn’t actually have the embryo implanted, but it almost sounds like once you’re impregnated, you’re saying I have a right to terminate the pregnancy. Does this sound like a fair analogy?
Debbie Levine: Yes, it does.
David E.: Which we don’t normally say. We don’t say the husband or father has the right to come in and say, “Well, you have to abort your child.” Just that’s something that struck me in terms of thoughts, but anyway, so the judge ended up using this balancing approach, right? And you said she ended up leaning on the contract within the context of that balancing approach.
Debbie Levine: Right, and she also relied on the fact that Arizona does have some very specific law related to financial obligation and in fact, it references children born of in vitro fertilization-
David E.: Interesting.
Debbie Levine: … that the parent has an obligation to provide child support for that child. My client was willing to waive that financial obligation, but Arizona law doesn’t provide for that option.
David E.: Separate question, maybe I can ask, one other thought that occurs to me. Is it possible, I’m just asking this to you as a family law legal scholar. Is it possible for somebody to completely waive rights to a child. That is to say, could you have constructed a situation where Ruby says, “All right, I’m going to take the embryos and if a child comes of these embryos, can I forever sever his rights so he doesn’t have an obligation to pay for child support?” or something like that?
Debbie Levine: So interestingly enough, and I’m sure you could’ve answered this question on your own, being a family law-
David E.: I know, but it sounds so much better if I ask you.
Debbie Levine: … a family law scholar yourself, but while he could have terminated his parental rights, the problem is financial obligation does not terminate with the termination of parental rights unless and until there’s an adoption of that child.
David E.: Right.
Debbie Levine: So there’s too much risk, I mean, even if my client had testified that she would have the child adopted, there’s nothing that says that would happen or could happen. I mean, she was still married. She couldn’t even be in a position to say, “I have someone ready to step into your place.”
David E.: So basically, and then by agreement, there’s no way you could wipe out his potential obligation to support the kid? Is that …
Debbie Levine: That’s correct, and I think that was a big influence. I mean obviously, I can’t step completely into the judge’s mind, but I believe that that was a big factor.
David E.: Well, it sounds like, and again, you guys gave me a chance to read through the briefs that were filed in this and the opinion there, and it did sound like that was one of the major focal points from his side, was that he shouldn’t be forced into all these potential obligations, particularly the financial ones. Is that correct?
Debbie Levine: That’s correct.
David E.: Now, there was another legal angle that it sounded like was taken, the contemporaneous mutual consent approach. Do you recall that?
Debbie Levine: I do, and that came out of a different jurisdiction. I believe it was Iowa.
David E.: What is that?
Debbie Levine: So in those situations, it states that the court will rule … basically essentially that both parties have to agree as to what’s going to happen with this property. Well, unfortunately, we wouldn’t be in court if these parties agreed as to what was going to happen with this property.
David E.: Right, and did the court ultimately end up taking this approach?
Debbie Levine: No, they actually, that’s why they adopted the balancing approach, which has been adopted in more jurisdictions nationwide than the contemporaneous approach.
David E.: Gotcha. So one question I have out of this, so this was a trial court decision, correct? Now, just for people listening, is that trial court decision binding law? Does that make law, in other words?
Debbie Levine: It does not, unfortunately. So my client has the right to appeal this decision. She has 30 days from the date of the ruling.
David E.: When was the ruling?
Ruby Torres: August 21st of 2017.
David E.: Are you planning to appeal, or do you know yet?
Ruby Torres: I don’t know yet. I keep going back and forth. Part of me does want to appeal, but part of me also feels that I need to heal, and-
David E.: If you chose not to appeal this, would this be persuasive law?
Ruby Torres: Yeah.
Debbie Levine: I think you could make an argument that it could be persuasive law.
David E.: Well, I would submit that it is.
Debbie Levine: Well, he would have to know it exists, unfortunately.
David E.: Well, because we can cite memorandum opinions, and I think this fits memorandum opinions under Rule 111, I believe it is, from the Supreme Court rules, but anyway. I’m getting a little academic there.
Debbie Levine: And again, other lawyers would have to know it exists.
David E.: But the end moral of the story is that this isn’t binding law, per se, so a different trial court could come to a different conclusion, but if this got appealed, it would then presumably make some binding law. Is that a fair statement?
Debbie Levine: That is a fair statement.
Ruby Torres: That’s a fair statement.
David E.: All right, well, this has been quite interesting, and thank you both for coming on. That is about all the time we have for today’s show. You have been listening to Family Law Report. I am David Enevoldsen, attorney with Family Law Guys, an Arizona law firm. We’ve been talking today about ownership of embryos in a divorce, and I’ve had with me guests Debbie Levine and Ruby Torres. Debbie, one more time, really quick, if somebody wants to get ahold of you, how do they do so?
Debbie Levine: 602-253-5880.
David E.: And Ruby?
Ruby Torres: 480-634-7480.
David E.: All right, join us again next week on Sunday at noon for more of the latest on family law here on Independent Talk 1100 KFNX, and remember to talk to an attorney if you have a family court proceeding. Thank you all for listening.
Speaker 7: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more, or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.