THIS OPINION HAS BEEN VACATED

We skipped this one when it originally came down in March. Although a petition for review is now pending the Court of Appeals has issued an amended opinion. The purpose of the amendment is uninteresting but the rest of the opinion turns out not to be. On one hand both the majority and the dissent want this to be a contract case. On the other they want it to be an exciting case of first impression in which they can make new law about unwanted embryos. The clerk of the court thinks its a divorce case.

The parties were boyfriend and girlfriend. She got cancer and needed treatment that might prevent her from having children, so they donated sperm and egg at a fertility clinic and the resulting embryos were frozen. Their contract with the clinic covered what would happen to the embryos in various eventualities. They married but then decided to divorce. It turned out that indeed she probably couldn’t have children except by in-vitro fertilization. She wanted to use the embryos for that, he didn’t want her to. On this issue the decree of dissolution ruled against her (though not entirely for him, either, a complication not essential to an understanding of the holding so we’ll overlook it). She appealed.

The Court of Appeals rules that she can use them.

First, it reviews facts, including (to summarize details the court gives in order to create such an impression, there being no purpose for them otherwise) that Torres is admirable but Terrell is shifty and selfish. Even if you believe that assessment you may wonder what it has to do with the interpretation of their contract. But under the rules of modern opinion-writing it is at least as important that a result be emotionally satisfying as that it be legally correct. With that in mind — and it is quite evidently what the court had in mind — you know by the end of ¶3 where this one is going.

Then, this being a “matter of first impression,” the court reviews the law of other jurisdictions. There are three approaches to embryo contracts: apply the contract (the majority approach, says the court), balance the interest of the parties, or require “contemporaneous mutual consent.” After spending six pages explaining the alternatives the court chooses one — the contract approach — for reasons it explains as follows: “we agree with the majority.”

(We now have a statute on this, 25-218.03, but it was adopted only recently and applies in dissolution cases. The court acknowledges in a footnote that the statute rejects the contract approach. But the statute wasn’t in effect at the time so “we are not bound by it in reaching a decision” and the court says it won’t affect unmarried couples in future cases. The court does not discuss how the policy implied by the statute might or might not affect the matter. Its approach to policy is in any event less than enlightening. In a footnote it refuses to apply the policy announced in 25-103 (“promote strong families and strong family values”) because it thinks that would result in Terrell winning: “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.” How the court reached that conclusion isn’t obvious but that it wants to avoid that result is. As a fall-back it asserts, in a footnote, that to consider this policy would be “speculative.” It also says — in, you guessed it, a footnote — that “neither party in this matter argues that the contract approach violates Arizona public policy.” Then why discuss it? Is it perhaps because someone realizes that when deciding what the law is public policy isn’t something a court can ignore even if the parties do?)

Having adopted the contract approach the court looks at the contract. The contract discussed in detail what would be done with the embryos if the couple didn’t use them or had a dispute. It said at least twice that the embryos couldn’t be used to create a pregnancy without the express, written consent of both Torres and Terrell. It also said (subsection H) that if the couple breaks up then the clinic would need a court order or settlement decree before using or disposing of the embryos. To Terrell and the dissent subsection H is basically a CYA provision for the clinic of the type common with medical facilities. But for the majority the reference to a court order, and also a sentence elsewhere to the effect that embryos could be covered by court orders, authorizes the court to resolve the dispute as it sees fit despite the terms of the agreement.

So the court uses a “contract analysis” to conclude that it is not bound by the contract. How, then, does it decide the dispute? By balancing the interests of the parties. Why? Because that “provides the proper framework.” Where does this balancing test come from? From the balancing cases the opinion rejected in favor of the contract rule. Apparently the unmarried-couple-embryo balancing test is so specialized that all Arizona precedent on how to analyze interests is inadequate. “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.” Since the court has already said that Torres doesn’t, that decides the case. (What about adoption, you might wonder? The majority dismisses it on the facts, the dissent on the law.) But the majority nevertheless spends several more pages “balancing” the parties’ interests.

How does it go about doing this? Using what “must be” a “fact-intensive inquiry,” examining the evidence and explaining why the trial court assessed it wrongly.  The majority concludes that the facts actually favor Torres. But don’t think for a moment that it finds its own facts. It tells us explicitly that it isn’t re-weighing the evidence, that it just applies law and accepts the trial court’s findings — except when it doesn’t, as for example when the trial court “overstated” something or considered a fact the majority thinks “unlikely” or thought the significance of the evidence the opposite of what the Court of Appeals thinks it is.  (Even if the court is acting properly, why do this? Why not use the careful and traditional disposition: remand for findings and conclusions in light of the legal standards announced by the opinion? The dissent suggests doing so, though only after four pages of its own “balancing” analysis, which ends up balanced in Terrell’s direction.)

Along the way the majority says that it can examine parole evidence, citing a Tennessee case that doesn’t actually use the words “parole” or “evidence,” which is perhaps why the citation says “see generally.”  But this mention of a traditional rule of contract law — even to say that it won’t be followed here — is at least a reference to that law, one of very few employed in what the court insists is a contract case. There may also be a couple of passing allusions to objective intent of the parties at the time of the contract, though the majority doesn’t seem to think of them as such. That the parties “sought to jointly preserve Torres’ fertility, and not simply to have a child within a marriage, or even within a relationship” isn’t called a finding or presented as having been made by the trial court; the dissent’s discussion suggests that the family court essentially found to the contrary. And that Terrell faced the same potential financial obligation then that he does now is mentioned as if it were somehow an argument against him.

The court also reverses the trial court’s denial of Torres’ fee request, again because the lower court found weighed balanced dealt with the facts improperly. But those facts involved a mundane divorce squabble, not embryos. (This is the reason for the amended opinion. The original granted Torres fees on appeal — accidentally, it now seems, by confusing them with trial-court fees. The amendment, besides correcting a typo or two, denies the appeal request and remands the other.)

As you may have noticed, this is a footnote-rich opinion. As usual, few if any belong; they are either useless or express thoughts that should have been incorporated into the main text. Footnote disease has been largely quiescent in CA1 for several years but the court occasionally relapses.

Is it pedantic nowadays to criticize split infinitives? Yes, when done deliberately to aid clarity or meter or done inadvertently but rarely. But the majority commits them needlessly and frequently.

The dissent is itself several pages long (but only two footnotes). For purposes of brevity and clarity, though, we have distilled it into the few comments made above.

(Opinion: Terrell v. Torres)