Divorced couple battle for 'custody' of their frozen embryos

Danielle Hamm

Progress Educational Trust

05 June 2007

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[BioNews, London] A divorced couple have applied to the Texas Supreme Court for rights over frozen embryos, created using each of their gametes whilst they were still married. Randy and Augusta Roman underwent fertility treatment together before they separated in 2002. On the eve of the day the embryos were due to be implanted, Randy is reported to have withdrawn his consent to the procedure. The couple subsequently divorced and they have been fighting for 'custody' of the embryos ever since.

Initially, the district court ruled that Augusta had a constitutional right to the use of the embryos. The decision was later reversed by the Texas first Court of Appeal that ruled that the couple had made a contractual and binding agreement to destroy the embryos if they divorced. The case has now been referred to the Texas Supreme Court; which is not expected to decide whether it will hear the case until later this year.

The case has ignited debate in America because of its potential implications for the legal status of the embryo. The ability to store embryos has created new legal questions over rights to these embryos in the event of subsequent disagreement between couples. There is currently no federal precedent and this is the first time such a case has come before the Texas Supreme Court. Similar cases have gone to the Supreme Courts in six states in America and the general trend has been to prevent implantation on the basis that one spouses' right not to implant the embryos overrules the other spouses right for them to be implanted.

Some fear that if the case ends up in the Federal Supreme court, then the increasing conservative Court may use it as a vehicle for reconsidering the legal status of the embryo. In the landmark Roe v Wade ruling, which effectively made abortion legal in America, the Court ruled that because the unborn do not have constitutional rights, the woman's rights over her own body take precedent. If the unborn are considered to have a constitutional right to life, the legality of abortion will be thrown into question.

A similar case has recently gone through the European Court of Human Rights (ECHR). Natallie Evans fought for the right to use frozen embryos, created with her former partner, after he had withdrawn his consent to their use. The Court's final ruling was that Evan's right to become a parent should not be afforded more weight than her ex-partner's right not to become a parent.

Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.