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Women, Divorce, and IVF: What happens?

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Imagine this scenario: Embryos are created and stored for in vitro fertilization (IVF), but the couple divorces before all or some are used by the wife. With the IVF process becoming a more prevalent choice for couples facing infertility issues, together with our society’s divorce rate, such a situation is increasingly occurring. What do you need to know?

As is often the case, the law has not caught up with science. Only a handful of state legislatures have statutorily addressed pieces of these moral and highly-emotional situations.  In states with no legislative guidance, courts have typically adopted one of three approaches: the contractual approach, the balancing test, and the contemporaneous consent model.

The current – and only- leading case in Texas comes from the First Court of Appeals between ex-spouses Augusta and Randy Roman.  The Romans began the IVF process, creating three embryos deemed healthy enough to freeze until implantation. The Romans signed an agreement with the clinic that provided the embryos would be destroyed in the event of a divorce. The agreement further granted each spouse the ability to withdraw their consent “to the disposition of the embryos and to discontinue their participation in the program.” On the day before Augusta’s scheduled implantation, Randy withdrew his consent. Eight months later, Randy filed for divorce.

When Randy filed for divorce, Augusta had not had any of the embryos implanted yet. Randy asked the trial court to honor the agreement with the clinic.  Augusta argued that at the time of signing, she believed the agreement to cover only embryos that were left-over after she had already had one or two implanted. Further, Augusta argued that, consistent with Texas law, she would not hold Randy to any legal parental obligations should she give birth from the embryos.

As this was a case of first impression in Texas, both parties pointed to other states to support their arguments. The trial court treated the embryos as community property, awarding them to Augusta as a “fair and equitable division” of the Romans’ community estate. On appeal, after surveying the sparse law from other jurisdictions, the Houston court of appeals decided to adopt the contractual approach: the embryos would be dealt with according to the parties’ agreement with the storage facility. The Houston court found the Texas’ public policy would support enforcement of a prior agreement.  As a result, Augusta went through a lengthy, painful process, ultimately losing the chance to become pregnant. The Supreme Court of Texas denied Augusta’s petition to hear her case, signaling an end to her legal options.

Harsh. Can decisions of this magnitude be adequately addressed on the front-end? Is there a view that needs to be espoused by the pro-life community? Does the need for clear legal resolution mandate adherence to the contractual approach?  Or is there a better way?   More to come on this topic!

Case cite: Roman v. Roman 193 S.W.3d 40 (Tex. App. -1st 2006), pet. denied (2006).

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