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Divorced couple battle for 'custody' of their frozen embryos

4 June 2007
Appeared in BioNews 410

A divorced couple have applied to the Texas Supreme Court for rights over frozen embryos, created using their egg and sperm 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 On the eve of the day the embryos were due to be implanted, Randy is reported to have withdrawn his consent to the procedure.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 Natallie Evans fought for the right to use frozen embryos, created with her former partner, after he had withdrawn his consent to their use.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.

Court case over frozen embryos in Texas could have implications for Roe v. Wade
Kaiser Network |  31 May 2007
Divorced couple battles over frozen embryos
MSNBC |  31 May 2007
Embryos at the center of bitter custody battle
Houston Chronicle |  1 June 2007
Her embryos or his?
LA Times |  31 May 2007
21 December 2009 - by Dr Nadeem Shaikh 
The Supreme Court of the Republic of Ireland has ruled that a woman may not use her frozen embryos after her estranged husband, whose sperm was used to create them, refused consent. Mary Roche, 43, and her husband Thomas had one child in 1997. They then turned to IVF treatment at the SIMS Fertility Clinic in Rathgar, Dublin, which produced six embryos. Three of the embryos were implanted, resulting in the birth of one child. The other thr...
19 May 2008 - by Antony Starza-Allen 
The US Supreme Court has declined to hear an appeal from a Texan woman after state courts refused to grant her permission to implant embryos created using the sperm of her ex-husband, after he withdrew his consent. Augusta Roman sought a ruling that would allow her to...
10 April 2007 - by Dr Jess Buxton 
The UK woman fighting to use stored frozen embryos against the wishes of her former partner has lost her final appeal. Natallie Evans underwent IVF with Howard Johnston in 2001, before Ms Evans had treatment for ovarian cancer that left her infertile. Mr Johnston later withdrew...
24 July 2006 - by Dr Kirsty Horsey 
In a dispute between an Irish couple over the use of frozen embryos, created before they separated, a High Court judge has ruled that the man did not ever give consent for his estranged wife to use the embryos. Justice Brian McGovern ruled that the man...
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