Texas is one of the few states required to determine the issue of the disposition of fertilized, frozen embryos in a divorce situation. In a recent case, Roman v. Roman, the Texas Court of Appeals was asked to consider the parties rights to become a parent, the right not to become a parent, and whether an enforceable contract was possible regarding embryos not yet placed in a woman’s uterus. In the end, the Court found a binding and enforceable contract existed and apparently superseded the rights to become a parent.
Background
A couple, Randy M. Roman and Augusta N. Roman, decided to wait two years to have children. However, when the time came, the couple was unsuccessful at conceiving on their own. There were several attempts by the couple at artificial insemination following, but after being unable to conceive in this way, the parties sought in vitro fertilization.
As a part of the process, ova were removed from Ms. Roman’s ovaries and fertilized with Mr. Roman’s sperm. The embryos were then frozen, awaiting in vitro insertion into Ms. Roman’s uterus.
However, before an embryo was place in Ms. Roman’s uterus, Mr. Roman sought divorce. During the divorce, the frozen embryos remained at the lab. Ms. Roman requested the embryo in the divorce proceedings, but Mr. Roman objected.
The problem with allowing Ms. Roman the frozen embryos was in a contract signed by the parties with their fertility doctor. It provided, among other things, that, “If we are divorced or either of us files for divorce while any of our frozen embryos are still in the program, we hereby authorize and direct, jointly and individually, that one of the following actions be taken: The frozen embryo(s) shall be discarded.”
Ms. Roman’s position was that if the embryos are discarded, it may be her last chance to bear children. Mr. Roman took the position, among others, that he did not wish to procreate outside of a marital relationship and that the contract was valid between the parties. Though Ms. Roman had agreed that Mr. Roman would not be recognized as the father, he felt that was not possible on either moral or legal grounds.
Case Decision
At the trial court level, the court sided with Ms. Roman, determining her right to become a parent entitled her to possession of the embryos. Mr. Roman appealed. The Texas Court of Appeals reversed the trial court and ruled the contract signed by the parties must be enforced and the Court did not have power to amend or disregard it. Therefore, the frozen embryos were to be destroyed.
The Basis for the Decision
The Court first considered that only six cases could be found relating to the issue of frozen embryos, and that in most of those case, a valid contract existed. It noted that the Supreme Court of Tennessee weighed the rights of the parties and the right of the wife to bear children vs. the husband’s right to not become a parent. It also noted that New York upheld a written agreement, while New Jersey would not enforce an oral agreement. In the New Jersey case, it was distinguished from the present case, in that the husband desired the embryos for future use with another woman.
It also cited Texas Gestational Agreement Statutes regarding parentage and recognized that they were not directly applicable to the Romans’ situation. However, the court did recognize a public policy in the State of Texas to permit an agreement for possession of frozen embryos by parties and for their disposition in the event of a contingency.
The Texas statutes cited by the Court played a pivotal role in its determination. Sometimes a court will refuse to enforce a contract on public policy grounds. However, in this case, it determined that the legislature set public policy, and creation of a contract in these situations was consistent with that policy.
Contract Law Applied
Contract Law AppliedThe Court found the following contract principles were present, thereby why the contract was enforceable:
- The contract was clear and unambiguous.
- There was a meeting of the minds between the parties.
- No coercion was present.
- Both parties were capable of entering into a contract.
Aftermath
Ms. Roman appealed the case to the Texas Supreme Court and the U.S. Supreme Court, but both declined to hear the case. (When an appellate court refuses an appeal of a lower court, the lower court’s ruling stands.)
Due to the increased popularity of methods such as in vitro fertilization, it is unlikely that this will be the last time such an issue comes before a court. Different results may be expected, for example, if unfertilized eggs of a female or unused sperm of a male are at issue. If an oral contract is involved, the Court may rule differently. However, when a fertilized embryo is involved and the parties have a written, clearly worded, unambiguous contract, the contract will be enforced.
Read the full Text of Roman v. Roman.
