Texas Frozen Embyo Case Update: Wife To Try Last Desperate Legal Gambit

April 15, 2008


The ex-wife in the highly publicized Texas Frozen Embryo Custody case of Roman v. Roman was “devastated” upon hearing the news that the U.S. Supreme Court denied her the right to legal custody of several frozen embryos she had created with her ex-husband prior to their divorce.  Augusta Roman, 46, has said that the embryos are her last chance to become pregnant.   Her ex-husband, Randy Roman asserts that he does not want to create any children with her after their long and bitter divorce. 

Augusta Roman’s local attorney, Becky Reitz, said her client was devastated by the refusal of the Texas and U.S. supreme courts to hear her case.

“She just bawled,” Reitz said. “She cried her eyes out.”

Randy Roman’s attorney, Greg Enos was characteristically understated and said his client was “pleased” with the news and that Mr. Roman was “hopeful that this long ordeal is over”.

It looks however that Randy Roman will have to endure more before the case is finally over.  Augusta has pledged that she is going to exhaust every legal remedy- no matter how long the odds or how much it costs. 

“I told her the only thing we can do is file a motion for reconsideration and it will cost $1,000 just for the printing. She goes, ‘I don’t care”, said Becky Reitz.

Augusta Roman’s last legal option is to motion the U.S. Supreme Court to reconsider it’s decision.   The long shot motion is a final desperate gambit.  The U.S. Supreme Court almost never grants such motions, and such motions usually argue that something new has happened since the Court considered the case. 

If the U.S. Supreme Court denies the motion, Augusta Roman will be out of legal options.  If that happens, the embryos will never be implanted.  The embryos will remain frozen under a protective order until the end of the case.  After all legal remedies are exhausted, the embryos will likely be destroyed by the fertility clinic unless the parties agree to have them disposed of differently.

Quotes from an article printed in the Houston Chronicle 


Finale to Texas Embryo Case of Roman vs. Roman

April 9, 2008

The Texas custody battle over frozen embryos is all but over. 

 You may recall the case of Roman v. Roman which got national attention earlier this year.  On February 4, 2004 after a bitter divorce trial,  Harris County (Houston) Judge Lisa Millard ruled that the embryos that a couple had frozen two years earlier should be awarded to the Nigerian born ex-wife who wanted to have them implanted and brought to term.  The ex-husband, a serious minded man, did not want to be forced to create children with a woman whom he did not love.  The wife, Augusta Roman claimed that because of her age, the embryos where her last chance to bear children.  She promised the ex-husband, Randy Roman that if he accepted the ruling, she would not ask for child support and would agree to let Randy terminate his parental obligations.   Randy was aghast at the thought.  He said that the child support was not the issue and that if any children were born he would meet his obligation to support them and help raise them.  It is not that he didn’t ever want children, he just didn’t want children with THIS woman. 

So Randy filed an appeal to the Texas First District Court of Appeals in Houston.   That court overruled the trial court because at the time the couple froze the embryos, they had each signed a form contract that clearly stated that in the event of the divorce of the couple, the frozen embryos would be destroyed.  Augusta’s claim that she didn’t pay attention to what she was signing did not find any favor with the judges. 

Augusta then filed an appeal with the Texas Supreme Court and at the urging of her attorney, Becky Reitz promptly went on a publicity circuit seeking to garnish public favor for her case.   The softly speaking woman and her piercing attorney made an odd pair on the television, but they interviewed with any media outlet that would have them.  Meanwhile, Randy Roman, a private man by disposition, refused to make a public spectacle of the tragic end of his marriage and instead let his low key attorney, Greg Enos pick a few select media outlets so his side would not be unheard.  Gary Sacks, a father’s right advocate, also voiced Randy’s side with the media. 

In the end, the Texas Supreme Court upheld the appeal court by refusing to hear the case.  It may be that the publicity Augusta and her attorney rutted for actually backfired, and the judges thought it was politically expedient to refuse the case rather than deal with the volatile issues of a “right to life” case (which was how the case was presented in the ex-wife’s brief). 

Determine to see this through to the bitter end, Augusta and her attorney filed an appeal with the U.S. Supreme Court.  After all the media ballyhoo, the Supreme Court has finally ruled.  On March 17, 2008, it denied Augusta Roman’s petition.  In refusing to hear the case (which it is allowed to do), the U.S. Supreme Court has effectively affirmed the ruling of the Texas Supreme Court.  The decision is final and there are no further appeals.

Technically, Augusta has until April 17, 2008 to file a Motion with the U.S. Supreme Cour to reconsider their decision.  She may decide to do this, but the chances of the US Supreme Court suddenly changing its mind and deciding to hear the case are slim to none.  

Therefore with no legal remedies left for Augusta Roman, Randy Roman has won this case once and for all.  And what of the frozen embryos?  Chances are they will linger in limbo for a while before the fertility clinic must finally do something with them.  Their final fate is undecided except that they will never be implanted.

Although we may permit Randy the right to sigh with relief after this long and costly legal war, we must also offer our sympathy to Augusta who no doubt believed in her cause.  Ultimately, as with most all cases that involve family law, there is no clear cut right and wrong.  Practitioners in family law advocate for either side and hope that in the end justice is done- but sometimes, even though we fight with all our power to make sure both sides views are heard by the judges, privately even we can’t be sure of the best outcome.  The only certainty in this field is that these cases always involve tragedy and sadness.  We just have to hope that justice was done and both parties can begin to heal and move on to a better life. 

Texas Frozen Embryo Case of Roman v. Roman On CNN’s Anderson Cooper

November 2, 2007

Follows is the transcript from last nights CNN news show: Anderson Cooper.  In it, Augusta Roman, who has used up all her appeals in Texas indicates that her attorney is working on a brief to take the case to the U.S. Supreme Court.  From politics, let’s turn to a story that is certainly going to have you talking tonight. Divorce cases are often bitter and brutal. And they certainly get worse when there’s a child caught in the middle. But there’s one battle that is not over a boy or a girl. It’s over frozen embryos and just who they belong to. CNN’s Gary Tuchman has our report tonight. (BEGIN VIDEOTAPE) GARY TUCHMAN, CNN NATIONAL CORRESPONDENT (voice-over): They are from very different countries and cultures, but Augusta and Randy Roman hit it off quickly when they met in Texas. AUGUSTA ROMAN, FORMER WIFE OF RANDY ROMAN: We wanted to get married and have kids. So, we didn’t really have a long, what you call it… TUCHMAN (on camera): Courtship. A. ROMAN: Courtship. So, we talked about it, and we wanted to get married and start a family. RANDY ROMAN, FORMER HUSBAND OF AUGUSTA ROMAN: She was the woman that — that I married for life, and she was the woman that I wanted to have a family with. TUCHMAN: They had fertility issues and ultimately began in vitro fertilization treatment. Thirteen eggs were retrieved from Augusta’s ovaries. Six were fertilized with Randy’s sperm. The night before they were ready to implant the eggs: A. ROMAN: I got ready for bed. And he just came out of the office and said he has something that’s been on his mind that he wants to talk about. TUCHMAN: Augusta’s husband told her he didn’t want to go through with it. R. ROMAN: I just felt that something wasn’t right and the marriage wasn’t in harmony. A. ROMAN: I was pretty shocked. TUCHMAN: The couple went through marriage counseling, but, ultimately, they got divorced. However, Augusta, who is now 47, still wanted to try to have a baby from the three embryos that survived the freezing process. A. ROMAN: I want my children. Those are fetuses. They’re my children. They’re not just embryos out there. TUCHMAN: Randy Roman says he’s an evangelical Christian, but: R. ROMAN: Not everybody in the Christian community, or in the evangelical Christian community, believes that life begins at conception. And I’m one of those who does not believe that life begins at conception. TUCHMAN: Greg Enos is his attorney. GREG ENOS, ATTORNEY FOR RANDY ROMAN: He doesn’t want to have a child with a person who feels so negatively about him. He — and he wants to have a child in a nuclear family. TUCHMAN: So, in a most unusual divorce case, the Romans are fighting over their embryos. You will be amazed how far that fight has gone. We will tell you when we come back. (END VIDEOTAPE) (COMMERCIAL BREAK) O’BRIEN: Like many couples, Augusta and Randy Roman wanted to start a family. And their attempts at childbirth lead them to in vitro fertilization treatment. But then the marriage fell apart. She hoped to create a family with the embryos, but he doesn’t want to. CNN’s Gary Tuchman continues his report, showing us just how far both are willing to take this fight. (BEGIN VIDEOTAPE) TUCHMAN (voice-over): Both Augusta and Randy Roman had signed a form, agreeing to have the clinic discard the embryos in the event of a divorce. A. ROMAN: I wasn’t paying attention. I was signing a bunch of forms, trying to get to have babies. That was the only thing on my mind, trying to have babies. REBECCA REITZ, ATTORNEY FOR AUGUSTA ROMAN: My heart just breaks for her. TUCHMAN: Rebecca Reitz is Augusta’s attorney. REITZ: I know that — that society should — should err on the side of protecting life, and — and not destroying life. TUCHMAN: A Texas trial court ruled in favor of Augusta, but then an appellate court ruled in favor of Randy. The Texas Supreme Court decided not to hear the case. Now Augusta’s attorney is preparing briefs for the U.S. Supreme Court. The embryos remain frozen at this clinic. Anti-abortion groups support Augusta. CLARK FORSYTHE, AMERICANS UNITED FOR LIFE: The best-interests- of-the-child standard should be applied here to protect them, without regard to the individual will of either parent. TUCHMAN: One prominent bioethicist disagrees with that. DR. ARTHUR CAPLAN, DIRECTOR, UNIVERSITY OF PENNSYLVANIA CENTER FOR BIOETHICS: He is involved in the creation of the embryos, as well as her. And you don’t want to put people in a position where they’re being asked to reproduce against their will with someone they don’t want to. TUCHMAN: Randy Roman says his ex-wife has made this very difficult and painful. R. ROMAN: She hates my guts, but she wants my sperm. A. ROMAN: I don’t hate him. I feel — I think he has a problem. And I do pray for him. TUCHMAN: She also prays that the U.S. Supreme Court take the case and rules in her favor. It’s her last legal chance. Gary Tuchman, CNN, Webster, Texas. (END VIDEOTAPE) O’BRIEN: OK. So, you have seen the story. Now to the legal issues that are at the center of this battle. For example, is there any difference between the legal rights of an embryo that’s inside the womb and one that’s outside the womb? We will take a look at that just ahead. *** Now back to that bitter custody battle we have been talking about, a divorced couple fighting over frozen embryos. Is this case going to go all the way to the Supreme Court? We are going to check in with law professor Jonathan Turley right after this short break. (COMMERCIAL BREAK) O’BRIEN: In custody cases, courts usually decide by what’s — looking at what is for the best interest of the child. But what if there is a custody case, but no child? What if the fight is over frozen embryos? That’s what is unfolding in Texas between a divorced couple. Randy Roman doesn’t want the embryos implanted. His ex-wife, whose name is Augusta Roman, is hoping that she can use the embryos and have children. A Texas appeals court ruled in his favor, because the two signed a contract saying that those embryos would be discarded upon divorce. Now she’s asking the U.S. Supreme Court to step in. Lots to talk about tonight. Joining us is Jonathan Turley. He, of course, is a constitutional law expert at George Washington University. Jonathan, nice to see you, as always. JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY, GEORGE WASHINGTON UNIVERSITY: Thanks, Soledad. O’BRIEN: The Texas Supreme Court refused to hear the case. What do you think the chances are that, in fact, the United States Supreme Court will hear this case? TURLEY: I would bet against it. I have got to tell you, I don’t think that the United States Supreme Court wants any part of this case. It’s very, very complex, in the sense that it has constitutional elements, contractual elements. But, at the end of the day, the Supreme Court generally leaves these things to the states. And I’m willing to bet you that a majority of the justices would agree with the court of appeals on the case. O’BRIEN: At the same time, you have some outstanding issues. She’s older. These embryos can remain frozen until they make a decision. But there’s sort of a clock ticking here in the background. Will that play any role? TURLEY: Well, all of this goes into the mix. I mean, the trial court actually found that, even if the embryos were implanted, she would have only about a 10 percent likelihood of actually bringing a child to full term. O’BRIEN: Because she’s 47 years old. TURLEY: That’s right. But, still, this is still the potentiality of something that she wants very, very much. And that’s what makes this all very, very tragic. And, so, you have this tension between a case — within a case in which you have got constitutional questions which are looming, the Roe v. Wade, you know, right-to-choose/right-to-life questions. But then you also have a sort of purely contractual question of, these are two people that entered a contract and said, we’re going to do something under these conditions. And one of those conditions was that we would not use the eggs unless both of us agreed. O’BRIEN: And it was clear. There was a form that was signed. She said, you know — she’s not saying she didn’t sign the form. The way she describes it, well, you know, there are lots of forms. And I just signed them because I wanted to go ahead and get — you know, get going with having these babies. Will that have any standing in a court? TURLEY: Not really. I mean, I can understand what she’s talking about. Many of us sign things, particularly when we’re distracted or we’re thinking about other matters. But we are held accountable to those. And this was a very important contract. This was dealing with fertilized eggs, the potentiality of being implanted. And I’m afraid the courts will use that lack of judgment or concentration against her. The — the terrible thing for many people, Soledad, is that these eggs are treated as property. They are just part of the estate. And what the court said originally, the trial court, was, this is a community property state. It’s part of community property. I’m going to give it to — give it to her, and she can use these eggs. But the court of appeals said, wrong, that this is subject to a contract. And the court also noted that there’s a strong public policy against requiring people to have children. O’BRIEN: Anti-abortion organizations are supporting Augusta in this. And she says — this is what she said in interview with the Associated Press — “If I was pregnant with these embryos, no one should come and say to me, abort them. There’s no difference,” she says, “between embryos inside the womb and outside the womb. I’m already pregnant.” Is she already pregnant, in the eyes of a court? TURLEY: No, not in the eyes of the court and not legally. She may view that morally… O’BRIEN: And not technically either. TURLEY: Yes, or technically. But she may believe that, morally, that — that that’s true, that this is the potentiality of life. You know, President Bush is opposed to destroying even stem cells under the same theory. But, legally, that’s not the case. And to make this argument to the Supreme Court is going to really buck the trend. Right now, conservatives are trying to take inches away from Roe v. Wade. This would be a moon shot. This would be asking justices to say that a fertilized egg is itself life that deserves full protection that you would give a full-term baby. That’s just not going to happen. And it hasn’t happened. The notable thing, Soledad, is that the courts have been almost uniform — in fact, I think they have been entirely uniform — in ruling against people trying to force an ex-spouse or ex-partner to relinquish control of these — these eggs, that the courts have said, you really cannot force someone to have a child. You have a right to procreate, but there’s a flip side. You have a right not to procreate, unless they signed a contract waiving that right, their right, to you. O’BRIEN: Jonathan Turley is a constitutional law expert with G.W. University. Nice to see you, Jonathan. Thanks so much.

Woman Vows to Appeal Texas Frozen Embryo Case of Roman v. Roman To U.S. Supreme Court

November 2, 2007

Roman v. Roman started as a Texas divorce case involving the disposition of embryos that had been frozen by the couple prior to filing the divorce action.  The trial court considered the embryos “property” and awarded them to Augusta Roman who wanted to have them implanted in her after the divorce.  Randy Roman did not want to have children with a woman who hated him and he appealed.  The Texas appellate court ruled in his favor in part because the party has signed a contractual agreement at the time the embryos were created that in the event of divorce, the would be destroyed.  Augusta Roman then appealed to the Texas Supreme Court who refused to hear the case.

This author/attorney had hopes that perhaps Ms. Roman would decide to leave well enough alone particularly since it is highly unlikely that the U.S. Supreme Court will want to hear this case because of the very clear fact that these issues are a states right to regulate and the practical fact that at 47, Ms. Roman only has a 10% chance of being able to bring the embryos to term and this percentage decreases with every passing day.  However, on last night’s  CNN news show: Anderson Cooper, Ms. Roman indicated that her attorney is working on a brief to the U.S. Supreme Court.  It is clear that so long as she and her attorney continue to receive publicity about this case- it will fuel Ms. Roman’s litigious nature, and her attorney’s thirst for fame despite the pain and expense this is causing her ex-husband.  Or perhaps it is because of it.

 For Randy Roman, this is not an issue of avoiding parental rights or child support.  He has vowed to support and be a part of any children regardless the outcome.   Mr. Roman apparently must protect his moral, ethical and legal right not to be forced to father children against his will until the bitter legal end.  The public at large should remember that although this case is unique and has become a legal fascination, it is also a personal tragedy for Mr. Roman- and undoubtedly for Ms. Roman as well.  I hope for Mr. Roman (and Ms. Roman too) that this case will end as quickly as possible so he can move on with life. 

Texas Supreme Court Denies Rehearing In Roman Embryo Case

October 16, 2007

On October 12, 2007, the Texas Supreme Court denied a request by Augusta Roman to reconsider the Court’s decision in the case of Roman v. Roman which involves how frozen embryos should be divided in Texas Divorce Cases. 

The Texas Supreme Court had previously refused to hear Augusta Roman’s appeal of a lower court’s decision which said the frozen embryos would not be awarded to her in a Texas divorce.  A refusal to hear a case is the legal equivalent of upholding the lower court’s decision.

Randy Roman and Augusta Roman created and froze the embryos due to difficulties they had in having children.  While still frozen, the embryos became part of a highly contested court case when Randy and Augusta decided to divorce prior to the embryos being implanted.  The trial judge awarded the embryos to the wife in the divorce, who wanted to have them implanted even though the husband did not want children born out of wedlock.  However this ruling was reversed on appeal because the parties had signed an agreement at the time of the embryos’ creation that the embryos would be destroyed in the event of divorce.

Under the rules of the Texas Supreme Court, the Court will NOT consider a second motion for rehearing. Therefore, Augusta has exhausted all her options for appeal on the state level and the decision that she will be denied the embryos stands. 

There is no word yet as to whether Augusta Roman plans to file with the U.S. Supreme Court.

Texas Supreme Court Denies Frozen Embryo Case of Roman V. Roman

August 27, 2007

The Texas Supreme Court on Friday refused to consider the case of a woman who wanted custody of three frozen embryos following her divorce.After her divorce from Randy Roman, Augusta Roman wanted to keep the embryos they had once hoped would bring children.

A Houston trial court had ordered the embryos turned over to Augusta Roman, but Randy Roman appealed that ruling and won. The case then went to the Texas Supreme Court.

The court did not issue an opinion with the ruling on Roman vs. Roman.

After the Romans married, she got pregnant but miscarried. When she couldn’t get pregnant again, the couple sought help at a fertility clinic and eggs were extracted and fertilized with Randy Roman’s sperm.

On April 19, 2002, the night before the eggs were to be implanted, Randy Roman told her he couldn’t go through with it, giving her a list of complaints about their marriage, Augusta Roman has said.

With their marriage dissolving, they decided to freeze the embryos while trying to sort things out. But it wasn’t long before the divorce and court battle ensued.

A key piece of evidence was a consent form both signed on March 27, 2002, that said the embryos would be discarded in the case of divorce.

Augusta Roman said she had not yet heard about the Supreme Court’s refusal to hear the case. She referred questions to her attorney, who did not immediately return a phone call to The Associated Press on Friday night.

Source: AP

Sean’s Comments:  Obviously, Randy Roman is thrilled with the decision.  However, Augusta Roman has vowed to take the matter to the U.S. Supreme Court.  We will wait and see if she wishes to drag this matter out to the highest court in the nation.  However, a mounting body of cases throughout the nation have proven again and again that this is a settled matter of law and Augusta may not implant the embryos and create children which Roman does not want.

Contract Law Found to Govern Disposition of Frozen Embryos in Divorce

April 20, 2007

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.”


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.”

Source: law.com