Texas Courts Deal with Frozen Embryos Following Divorce
By Bruce Patsner, M.D., J.D.
The continued success of assisted reproductive technology (ART) in general and in-vitro
fertilization (IVF) in particular has resulted in a situation where treatment for infertility
routinely produces more fertilized eggs (embryos) than can be reasonably implanted in
utero in any single treatment cycle. As a result, the freezing of unused viable embryos
(cryopreservation) has become a commonplace event in the United States.1 Despite the
fact that almost half of marriages end in divorce and at least 10% of married couples
require ART, the issue of frozen embryo disposition upon divorce has been dealt with by
only a handful of state high courts.2 Indeed, for many state courts the issue is often one of
first impression. The Texas case of Randy M. Roman v. Augusta N. Roman3 is a perfect
example.
The Facts of the Case
The Romans were a married couple diagnosed with infertility. IVF successfully produced
three apparently viable embryos that were frozen for later implantation. One month
before beginning IVF, both husband and wife had agreed in writing (“embryo
agreement”) at the physician’s office that the embryos would be discarded in case of
divorce. Nevertheless, when a divorce action ensued, the wife successfully obtained a
court order4 granting her possession, and use, of the embryos. The trial court based its
decision on the notion that the embryos were community property and that awarding
them to the wife was a “just and right and a fair and equitable division”5 of the property.
The husband appealed the decision.6
The Court of Appeals for the First District of Texas reversed the lower court decision.7 In
its ruling, the appeals court carefully reviewed the agreement which husband and wife
had signed and concluded that it was an enforceable contract because it “manifests a
voluntary unchanged mutual intention of the parties regarding disposition of the embryos
upon divorce.”8 In reaching its conclusion, the appeals court noted9 (1) the issue was one
of first impression in the State of Texas; (2) the Texas state legislature had not yet
provided any guidance for the court as to the will of the people over how such disputes
1
Rick Weiss, 400,000 Human Embryos Frozen in U.S.: Number at Fertility Clinics Is Far Greater Than
Previous Estimates, Survey Finds, WASHINGTON POST, May 8, 2003, at A10. The technology for freezing
embryos has been available for more than two decades.
2
The highest state court has formally ruled on the issue of disposition of frozen embryos following a
divorce in New York, New Jersey, Iowa, Massachusetts, Washington, and Tennessee.
3
Randy M. Roman v. Augusta N. Roman, available at
http://www.1stcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=82705 (last accessed February
26, 2008).
4
Augusta N. Roman v. Randy M. Roman, 310th District Court, Harris County, Texas.
5
Id.
6
Randy M. Roman v. Augusta N. Roman, 193 SW3d 40 (1st Dist. Texas February 9, 2006).
7
Id.
8
Id. at 50.
9
Id.
should be handled;10 and (3) that “public policy of [Texas] 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.”11 A petition for
review of the appellate decision was denied by the Texas Supreme Court.12
Similar Cases from Other Jurisdictions
In reaching its decision to enforce the contract both of the Romans signed to dispose of
frozen embryos in case of divorce, the Texas Court of Appeals13 carefully reviewed the
clarity of the language of the embryo agreement. The Court paid particular attention to
the section dealing with the disposition of frozen embryos which was reviewed in the
doctor’s office at the same time that the informed consent for IVF was signed. The Texas
court also reviewed five prior cases in other jurisdictions involving disposition of frozen
embryos in crafting its opinion and deciding to emphasize the importance of the prefreezing contract. The cases reviewed are summarized below.
In the 1992 landmark Tennessee case of Davis v. Davis,14 the divorcing couple did not
have either an oral or written agreement regarding the disposition of any frozen embryos.
A trial court decision which awarded custody of frozen embryos to the wife was reversed
by the court of appeals on the grounds that the husband had a constitutional right not to
be forced to father a child. The Tennessee Supreme Court15 upheld the appellate court
decision; in weighing the interests of each party it concluded that “the husband’s interest
in avoiding parenthood was more significant than the wife’s interest in donating the
embryos to another couple for implantation.”16 The case may be distinguished from the
Roman case by the fact that there was no prior oral or written agreement as to the
disposition of the embryos, and the embryos were not going to be implanted in the exwife.
In the 1998 New York case of Kass v. Kass,17 the divorcing couple had signed a consent
form which stipulated that both parties had to agree to release of the embryos, and that
any frozen embryos would be donated to medical research if no agreement could be
reached as to what to do with the frozen embryos after the divorce. As in the Tennessee
case, the trial court18 awarded the embryos to the wife, who had decided that she did not
want the embryos donated or destroyed. The court also directed her to implant them
within a reasonable time. The appellate court reversed on the grounds that the embryo
10
Id. In particular, the court noted that although Texas has laws regarding children of assisted reproductive
technologies there is nothing which specifically addresses the disposition of embryos in case of death or
divorce, and nothing “that is incompatible with the recognition of the parties’ agreement as controlling.”
11
Id.
12
Augusta Roman v. Randy M. Roman, Supreme Court of Texas, 2007 Tex. LEXIS 724 (August 24, 2007).
13
Roman, supra note 6.
14
Davis v. Davis, 842 S.W.2d 588 (Tennessee 1992).
15
Id.
16
Id.
17
Kass v. Kass, 696 N.E.2d 174 (New York 1998).
18
Kass v. Kass, Supreme Court of Nassau County, New York 1995 WL 110368 (1995) (Not reported in
N.Y.S. 2d).
consent agreement controlled, and this decision was affirmed by New York State’s
highest court.19
A 2000 Massachusetts case20 involving an embryo consent form noted that the blank
consent form which the husband had signed was too vague to control disposition of the
embryos. A subsequent 2001 New Jersey case21 concerned a husband who wanted to
preserve frozen embryos for his use or for use by another infertile couple, despite an
alleged prior oral agreement that the embryos would be destroyed upon dissolution of the
marriage. The trial court ruled in favor the wife because the family unit was no longer
intact, and ordered that the frozen embryos be destroyed. The appellate court affirmed,
noting that the husband would still be able to father children even if the embryos were
destroyed. In affirming the appellate court’s decision, the New Jersey Supreme Court22
noted that the oral agreement did not manifest a clear intent and could not control. The
court further noted that it was against New Jersey public policy to force a wife to become
a biological parent against her will. A similar 2002 State of Washington case23 also cited
concerned the disposition of “prembryos” based on an egg donor contract, not frozen
embryos, but again looked to the terms of the contract to control.
The most recent case reviewed by the Texas court was the 2003 Iowa case of In re:
Marriage of Witten,24 in which both parties had signed an embryo storage agreement with
the IVF clinic which stipulated that the embryos could be released only with the written
approval of both husband and wife. The Iowa Supreme Court stated that it rejected a pure
contractual approach, holding that a previously contracted agreement could be modified
provided that any change in the parties’intent was communicated in writing.25 However,
because the storage agreement did not specify in writing what was to be done in case of
divorce, and the parties could not agree, the court enjoined both parties from utilizing the
embryos without the other’s written consent.
The Need for State Guidelines Is Clear
Although there is no set rule as to how many embryos resulting from IVF will be
implanted in the uterus, the trend has been to avoid multi-fetal gestations and their
attendant obstetric morbidity if possible.26 This means that for many if not most infertile
couples undergoing IVF there will be “leftover” viable embryos. The options for these
couples are to either immediately discard the embryos, donate them to other individuals,
permit them to be used for medical research, or to freeze them for later use. Many but not
all IVF clinics routinely have married couples sign embryo agreements which specify
19
Kass v. Kass, supra note 17.
A.Z. v. B.Z., 725 N.E.2d 1051 (Massachusetts 2000).
21
J.B. v M.B., 783 A.2d 707 (New Jersey 2001).
22
Id.
23
Litowitz v. Litowitz, 48 P.3d 261 (Washington 2002).
24
In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003).
25
Id.
26
Doreen L. Hock, David B. Seifer, Efthica Kontopoulos, and Cande C. Anath, Practice Patterns Among
Board-Certified Reproductive Endocrinologists Regarding High-Order Multiple Gestations: A United
States National Survey, 99 OBSTET. GYNECOL. 763 (2002).
20
how frozen embryos are to be disposed of in case of divorce; there is no uniformly
employed agreement form and the degree of detail varies greatly.
Lessons to Be Learned Thus Far
Although awareness of the potential legal problems which might arise out of freezing
embryos is more than 25 years old,27 state legislatures have lagged behind the science in
confronting these issues. The lack of federal regulatory oversight over assisted
reproductive technology has not helped matters either.28 The end result of this is litigation
in state courts.
Despite differing fact patterns in the cases cited by the Texas appellate court, analysis of
state high court decisions thus far do reveal some clear trends. The Davis29 case decided
by the Tennessee Supreme Court seemed to treat frozen embryos as neither property nor
persons, given their potential for life, and strongly supported the notion that avoidance of
involuntary procreation is of primary importance. Because there was no embryo
agreement in Davis, though, the balancing of contract against procreation was raised only
by later cases.
The property framework for disposing of frozen embryos appears to have been uniformly
rejected by all states’ highest courts in favor of a mutual, informed contract voluntarily
entered into by husband and wife specifying how frozen embryos will be handled in the
event of divorce. However, the contract or embryo agreement may be trumped by the
desire of either husband or wife to avoid becoming a parent. One manifestation of this is
that in the absence of a specific plan in the embryo agreement for disposing of frozen
embryos after divorce, the trend among the states appears to be that neither party will be
able to use any frozen embryo without the specific written consent of the other. Another
clear trend is that even if there is prior contractual agreement by both parties to allow the
frozen embryos to be subsequently implanted, this past decision will be usurped by a
present-day decision against becoming a parent.30
The take-home lesson here for married couples with an infertility problem is that careful
advance planning, and careful perusal of any embryo agreement, is required for dealing
with unused frozen embryos so that conflicts in the event of divorce or the death of either
spouse can be minimized. And, couples must be cognizant of the fact that even the most
comprehensive embryo agreement may not be upheld in state court if it means that either
husband or wife may be placed in the position of later becoming a parent, even if just a
genetic parent, against their will. The relative paucity of state litigation over disposal of
27
See Lori Andrews, NEW CONCEPTIONS (1984).
See Lori Andrews, THE CLONE AGE (1999).
29
Davis v. Davis, supra note 14.
30
Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to
Frozen Embryo Disputes, 84 MINN. L. REV. 55, (1999). Prof. Coleman argues that “the widespread support
for a contractual solution to questions surrounding the disposition of frozen embryos is misguided. Rather
than promoting procreative liberty, requiring couples to make binding decisions about the future disposition
of their frozen embryos undermines a central aspect of procreative freedom – the right to make
contemporaneous decisions about how one’s reproductive capacity will be used.”
28
frozen embryos post-divorce may be also be viewed positively as a testimonial both to
how well the current judicial framework is working and the ability of formerly married
couples to resolve differences.
Future Directions?
As things stand now, a frozen embryo is not yet defined by law as a “person” with
inalienable rights in any state. Some states such as Colorado are seriously considering
laws which will define an embryo as a person;31 if such laws are enacted any contractual
framework for disposing of frozen embryos currently utilized by courts will likely be
negated.
The lack of uniform federal regulation of reproductive technology may be a casualty of
the abortion wars, an unwilling captive of the federalism versus states’ rights battle, or an
intentional systematic effort not to interfere with the physician-patient relationship.
Whatever its source, the lack of legal uniformity has set frozen embryos adrift in the open
seas of the uncharted world of infertility specialists, who at the moment answer only to
themselves, and state courts, which await guidance from the legislature.
Health Law Perspectives (March 2008), available at:
http://www.law.uh.edu/healthlaw/perspectives/homepage.asp.
31
Kirk Johnson, Proposed Colorado Measure On Rights for Human Eggs, N.Y. TIMES, November 18,
2007, at 13.