Texas Frozen Embryo Case of Roman v. Roman Finally Over

May 13, 2008

On thing can be said for Augusta Roman, she certainly fought her legal case until the bitter end.  

In a Harris County, Texas divorce, she wanted to be awarded frozen embryos she had created with her husband when they were still together.  Augusta wanted to implant the embryos and become pregnant even though her now ex-husband, Randy protested and said that although he might want children some day with someone else, he did not want to create children with a woman who obviously hated him.  And so Augusta and Randy waged a legal battle both in the judicial courts and in the court of public opinion for over two years, through all the levels of court in Texas, right up to the U.S. Supreme Court.

Earlier this year, the U.S. Supreme Court had ruled that it will not overturn the Texas Court of Appeals decision that denied custody to Augusta.  But in April, Augusta filed a Petition for Rehearing and additional briefs to the Court.  Yesterday, May 12, 2008, the U.S. Supreme Court handed down it’s final, absolute, and unappealable order.  It denied the rehearing.  Augusta Roman could not have the embryos.  Unless the donors agree otherwise, the embryos will be destroyed. 

The case drew national attention because it pitted several controversial legal issues against each other.  Do a handful of flash frozen cells have a “right to life”?  Does a man who donated his genetic material for the specific purpose of creating a traditional family have a right not to be forced into creating children out of wedlock with a woman who hates him.  Does a woman have an absolute right to bear biological children that is superior to the man’s right not to bear biological children?  Despite these titlating issues however, the Texas Court of Appeals denied custody to Augusta based on boring, dry contract law.  Apparently, the parties had a signed agreement with the fertility clinic that in the event of divorce, the embryos would be destroyed.  The Court said this contract controlled the case and it did not have to look at any other issues to decide.  In not accepting the case, the U.S. Supreme Court is basically saying that the Texas Court got it right.

A week ago, prior to this final hearing, the author of this blog spoke with Becky Reitz, the attorney for Augusta about the case.  She realized the long chances her client had on her last ditch effort, but she said that her client could not morally end this case unless all legal options had been exhausted.  I asked her about what the final disposition of the embryos might be.   I pointed out that if the parties agreed, there are other options other than simply destroying them- such as donating them to medical research.  She did not know if her client and Randy could come to an agreement on what to do with the embryos.  

Today I received an email from Randy Roman, the obvious tone of which was of great relief.  He thanked me for keeping track of the case through my blog and he wanted the word to get out about the ruling.  I replied back to him that just last week I had received a phone call from a man who read my blog and was facing similar fact as him.

Roman v. Roman is now finally over and forever on the legal books.  How it will be used as precident in future cases is limited only by the imaginations of the lawyers. 

Now that this is over, I hope Randy and Augusta can find peace.




Custody of Your Pet in a Divorce

May 8, 2008

Many couples, because of age or by choice do not have children- at least the two legged type.  For many couples, their beloved pets are considered their “children”. 

This is why when divorce comes along, parties can feel just as much anxiety, concern and apprehension as they would in a divorce proceeding involving a child.  However, the courts handle pets much differently than children and so some thought into the issues of  “custody” of Rover, Fluffy or Polly is needed.

Here are some basic issues to consider in a Texas divorce involving pets:

  • No matter how much you may feel that your pet is a member of the family, Texas courts consider animals as property only.
  • As property, the community property rules apply to your pet.  Therefore your pet is subject to being given to either you or your spouse.  The only exception is if you can prove that your pet is your separate property.  Generally you can only prove this if you (1) owned your pet prior to being married (bills of sale, vet bills dated prior to marriage etc. may be helpful here); (2) your pet was given to you as a gift during the marriage (hard to prove); and (3) your pet was willed or bequeathed to you (such as a long lived parrot willed to you by your aunt);
  • If you have a valuable pet (such as a horse, purebreds, or show animals) it will considered as a valuable asset.  If the parties cannot agree to the custody of the valuable pet, the judge could order that the animal be sold and the proceeds divided according to what the judge thinks is fair.  This “King Solomon” type of solution may be to neither party’s desire.

Although your pet is legally considered property, you may want to consider using a “best interest of the animal” standard in trying to negotiate with your spouse.  This may mean that you should be willing to give up your pet if it is your pet’s best interest.

  • Talk with your spouse about the pet to see if you can work out an agreement.  This is usually will be better than going to court and have a judge (who may not be an animal lover and has little patience for such “quibbling”) ruling in a way neither of you want;
  • If you do have minor children (human), who have formed an attachement with the pet, consider letting the pet go to the parent who has primary custody of the children;
  • If there are more than one pet, consider not dividing them between the spouses.  Pets, even of different species, often form packs.  Breaking the pack can cause depression and anxiety for the animals;
  • You can work a custody arrangment for visitiation just like done with children.  However, many judges will not take the time to make such a ruling.  You have to do this by agreement and have your attorney draft it up so it is legally binding.

If you absolutely cannot work our custody of your pet with your soon to be ex-spouse you will have to fight over Rover in court.  Here are some tips to keep in mind:

  1. Be sure to tell your lawyer early on in the case how important your pet is to you.  Your lawyer may not understand that this is a priorty for you unless you tell him or her.
  2. You should be prepared to show the court that you are the person best able to take care of your pet.  Some ways of doing this may include-
  • show you have more time to play with your pet;
  • show you are in better health or habit to exercise your pet;
  • show you have been the one to groom it, take it to the vet, etc.  You may even have your vet testify about your ability to take care of the pet;
  • show you have more space for your pet (particularly if it is a large animal that needs space to run).

Also, you need to find out early from your attorney how they feel about your passion for your animal.  Some lawyers will not want to deal with your special issues.  Try to find an attorney who is both sympatheic to your special attachment and yet practially minded about how to resolve the issues for both your interest, and your pets best interest.