When a couple divorces, who owns their frozen embryos? Can a woman have them implanted despite her ex-husband’s objections?
In Roman v. Roman, a case of first impression in Texas, Houston’s 1st Court of Appeals considered the merits of a property division in a divorce proceeding decided by Lisa Millard, presiding judge of the 310th District Court in Harris County. Millard had awarded three frozen embryos to the wife as part of a “just and right” division of community property, despite the parties’ prior written agreement to discard frozen embryos in the event of divorce.
On Feb. 9, after reviewing the “scant case law on the subject” from other jurisdictions, the 1st Court reversed the judgment and remanded Roman to the trial court “to enter an order consistent with this opinion and with the parties’ agreement that the frozen embryos be discarded.”
Rebecca L. Reitz, a partner in Houston’s Gay & Reitz who represents appellee-wife Augusta Roman, says she has until today to file a motion for rehearing en banc, which she plans to do. If that outcome is not favorable, she says, she plans to appeal the case to the Texas Supreme Court. Until all avenues of appeal have been exhausted, the embryos will remain frozen, Reitz says.
The lawyers for both former spouses agree that the court sidestepped the tough constitutional issues.
Gregory B. Enos, the attorney for appellant-husband Randy Roman, says the court was able to completely avoid the constitutional issues, including those he raised about the right not to have children against one’s will. “So that is still unsettled in Texas,” he says. “But I guess they didn’t have to address it, if they were going to rule solely on the contract.”
Reitz agrees that the 1st Court took the “noncontroversial way out” by skirting constitutional issues and narrowly focusing on contract issues. “They don’t want to get into the question of, ‘Is it a child? Is it a life? Is it not a life? Does the wife have a greater constitutional right to procreate versus the husband’s right not to procreate?’” Reitz says. “They take the safe way and say, ‘It’s just a little boring contract case, and we’re just going to say they signed an agreement and that it should be upheld.’” It becomes a lot messier when it becomes a constitutional balancing case, she adds.
Indeed, the 1st Court’s opinion, written by Justice Evelyn V. Keyes, notes that the court answers the issue “as narrowly as possible” in anticipation that it ultimately will be resolved by the Texas Legislature.
Justices Tim Taft and George Hanks Jr. joined in the opinion, which lays out the following facts and procedural history: Married in 1997, the Romans unsuccessfully tried to have children. In August 2001, the couple met with Dr. Vicki Schnell, medical director at the Center of Reproductive Medicine. Following laparoscopic surgery and artificial insemination attempts, the couple decided to try in vitro fertilization.
In March 2002, the parties signed various documents at the center, located in Webster, including an Informed Consent for Cryopreservation of Embryos (the embryo agreement) in which, in paragraph 2, the parties authorized storage of their embryos in a frozen state until such time as the center deemed it appropriate to transfer them to the wife’s uterus, and both husband and wife agreed to the transfer, according to the opinion. Section 10 stated that the parties authorized that the embryos would be discarded in case of divorce. The agreement contained a provision allowing the parties to withdraw consent to the disposition of the embryos and to discontinue participation in the program.
In April 2002, on the eve of a scheduled implantation, Mr. Roman expressed a change of heart and withdrew his consent, according to the opinion. He filed for divorce in December 2002. Ms. Roman counterclaimed, alleging fraud and intentional infliction of emotional distress. The parties reached a final binding agreement regarding all marital property except for the frozen embryos. At a bench trial before Millard, Mr. Roman asked that the embryos be destroyed pursuant to the embryo agreement. Ms. Roman requested that the embryos be implanted, so that she could have a biological child, and that Mr. Roman have no parental rights, according to the opinion. On Feb. 4, 2004, Millard awarded the embryos to Ms. Roman. Mr. Roman filed a motion seeking parental rights to any child born therefrom, pursuant to §160.7069(a) of the Texas Family Code. He filed a motion for new trial March 29, 2004.
Mr. Roman argued in his brief to the 1st Court that the trial court: 1. failed to declare the rights of the parties pursuant to a contract; 2. erred in awarding the three frozen embryos to his ex-wife; 3. erred in failing to make findings of fact and conclusions of law concerning constitutional issues; 4. violated his constitutional rights by awarding the frozen embryos to Ms. Roman; and 5. erred in awarding frozen embryos to Ms. Roman when he, the husband, had withdrawn his consent.
As noted in the 1st Court opinion, Ms. Roman did not dispute signing the embryo agreement, but contested the agreement’s validity and interpretation. Reitz contends that the trial court could have chosen not to enforce the agreement, given that other state supreme courts have found similar agreements to be invalid. In addition, Ms. Roman argues in her appellee’s brief that there was ample evidence that the document did not reflect a meeting of the minds concerning the IVF process and the disposition of resulting embryos. She asserts in her brief that much of the case law on this subject has held that these consent forms are not binding if a party later changes his or her mind concerning the disposition of the embryos.
After reviewing provisions of the Uniform Parentage Act in the Texas Family Code, the 1st Court concluded that none of the sections include a legislative directive on how to decide what to do with the embryos in case of contingencies such as death or divorce, “[n]or is there anything in the case law that is incompatible with the recognition of the parties’ agreement as controlling.”
The court looked to new legislation addressing gestational agreements and concluded that Texas public policy “would permit a husband and wife to enter voluntarily into an agreement, before implantation, that would provide for an embryo’s disposition in the event of a contingency, such as divorce, death, or changed circumstances.”
The court then launched into a contract analysis of the embryo agreement. Absent ambiguity, the court said, it interprets a contract as a matter of law. The court noted that neither Mr. Roman nor Ms. Roman withdrew consent to the agreement’s provision that the frozen embryos be discarded in the event of divorce. Nor did they withdraw consent to the provision under §11 that, if they could not agree on the disposition of the embryos, the frozen embryos would be discarded.
The court disagreed with Ms. Roman’s claim that she understood the embryo agreement to apply to remaining embryos only after implantation had occurred, and that she never agreed to destroy all the embryos without an opportunity to get pregnant. The court said that adopting such an interpretation would require imputing language to an unambiguous contract that “isn’t present and disregarding language that is.”
The court also found that the embryo agreement’s language in §10 regarding the disposition of frozen embryos could not be clearer. Section 10 stated: “If we are divorced or either of us files for divorce while any of our frozen embryos are still in the program … [t]he frozen embryo(s) shall be … [d]iscarded.” The court noted that the parties could have chosen other options, such as releasing the embryos to either party in the event of divorce — but did not.
The 1st Court found that the trial court abused its discretion when it “improperly rewrote the parties’ agreement, instead of enforcing what the parties had voluntarily decided in the event of divorce.”
Enos, managing partner of the Enos Law Firm in Webster, Texas, says he believes that Roman is an important decision for members of the medical establishment, who he predicts will be happy that an “agreement that patients sign in advance is going to be binding in telling people what they need to be doing.”
Schnell and the Center of Reproductive Medicine became parties to the Roman litigation after Ms. Roman filed a motion for leave to add them as parties Sept. 12, 2003. In a written statement, Heather M. Morlang, one of the lawyers who represented Schnell and the center, describes Roman as unique, not only because it is a case of first impression in Texas, but also because it “draws attention to the complexities facing physicians who work with assisted reproductive technologies (ART).”
Morlang, an associate with Kacal, Adams & Law in Houston, notes that many physicians, such as Schnell, request that couples consider such possibilities as divorce or death of a spouse before entering into ART programs and have couples sign agreements reflecting their choices, based on their personal beliefs, should those scenarios arise. “This process generally offers the physicians some stability and predictability in advance of entering into ART treatments,” explains Morlang. “With Roman … the Houston First Court of Appeals suggests to physicians … that such agreements, if drafted properly and with proof of a meeting of the couples’ minds, are consistent with Texas’ public policy and will be enforced.”
10,000 FROZEN EMBRYOS
Scientific advances such as IVF create new ethical and moral dilemmas, says Houston family law solo Teresa Waldrop. Typically, the responsibility of defining the parties’ rights will fall on the courts, until the legislature gets involved. For Waldrop, the opinion is noteworthy because it makes it clear that agreements governing disposition of embryos are not against public policy. Waldrop believes the court’s position is reasonable, and that contract construction is an appropriate approach. The consent is an advance directive, she adds: “We need enforceability to prevent disputes.”
Houston family law attorney Earle S. Lilly, a partner in Piro & Lilly, has extensive experience litigating frozen embryo cases, including the nation’s first custody battle over a daughter born of a frozen embryo. He believes that the trial and appellate courts properly treated the case as involving a “nonreligious issue.” This is “not an issue of morality, not an issue of the right to children, but a property right, just as if it were several acres of land,” says Lilly. “It is a contract right, a property right, and they properly decided that case [Roman] on that basis.”
Houston family law attorney Randall B. Wilhite, shareholder, president and managing director of Looper Reed & McGraw, agrees that the 1st Court deftly avoided becoming mired in constitutional law issues by resorting to pure contract analysis. “Although politicians, jurists, scientists, philosophers and religious leaders may debate whether an embryo is life or just potential life, like it or not, the clear state of our law is that it is an item of property,” says Wilhite. As such, it can be the object of a valid contract between competing claimants to the property.
Because the court ruled that the contract was not against public policy, and that the contract was properly formed, it was enforceable, he says. The significance of this opinion lies in its presumption that an embryo is an item of property, and that individuals contracting about the future of embryos they helped create may validly enter into contracts about them. To that extent, it provides more certainty to other couples in similar situations, notes Wilhite.
University of Houston Law Center professor Peter Linzer, who teaches constitutional law and contracts, and is of counsel at Vascoe Valdes, believes the opinion makes sense, is thoughtful and on point. “There is no good answer,” he says. “There is going to be heartbreak or irritation one way or the other.” But arguments that the woman should have greater autonomy than the man don’t work here, he says.
Linzer takes issue with the court’s dismissive treatment of Ms. Roman’s assertions that the embryo agreement’s reference to “remaining” embryos is ambiguous. Linzer believes the meaning of “remaining” was not self-evident even under a plain-meaning rule. The fact that the 1st Court disregarded Ms. Roman’s claim of ambiguity, however, is in keeping with Texas’ strict approach to contract construction, he says.
Enos says that his research indicates that more than 10,000 frozen human embryos are stored in Texas. “This means that the disposition of frozen embryos will increasingly become an issue,” he says.
Notes Enos, “Pretty much every fertility clinic has a written agreement of some similar nature, so they may even change their agreements a little to incorporate that ruling in the decision. If it comes up again, a trial court in Dallas or Harris [counties] would almost be bound to follow this decision, unless some other court of appeals rules differently within the state of Texas.”