Divorced couple battles over frozen embryos

Nearly four years after their marriage ended in bitter divorce, a Texas couple is still fighting for control of the last marital property in dispute — three embryos that remain frozen, figuratively and literally, by the courts.

Augusta Roman, 46, was awarded the embryos by a district court judge who concluded in 2004 that she had a constitutional right to the embryos created in a lab with her ex-husband's sperm. But two years later, a higher court reversed the decision, noting that Augusta and Randy both signed a contract agreeing to have the fertility clinic “discard” the embryos in the event of their divorce.

“First of all, that was consent between Randy and I as a couple, and a clinic, to give them directives of what to do if we get divorced,” Augusta Roman said Thursday during an interview on TODAY. “But the embryos were going to be implanted. There were not going to be any embryos left after being implanted to be frozen, if Randy hadn't stopped the procedure.”

Randy Roman does not dispute that he put a halt to the procedure. He declined to appear on the broadcast with his ex-wife, but acknowledged in court that he changed his mind about going through with the procedure just hours before the clinic was scheduled to implant Augusta's fertilized eggs in her uterus in April 2002.

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Sixteen months of counseling followed, but the couple, married in 1997, was not able to resolve their issues.

Bitter break-up
After a mediated divorce proceeding, Augusta got the couple's house in a small suburb of Houston and most of the furniture. Randy left the marriage with the Honda Civic, the futon and other items from the house.

Randy, however, insisted that he would never agree to let Augusta go ahead with her plan to become pregnant with the frozen embryos he helped create. Augusta even agreed to release him from any financial obligation for children produced by his sperm, but Randy refused to give in.

“A lot of fathers in our society have children and turn their backs on them,” Randy's attorney, Gregory Enos, told TODAY host Meredith Vieira. “My client is an ethical, religious and moral person. And if he's going to create a child, he's going to insist on being a father, but he doesn't want to bring a child into a relationship that is already divorced and so acrimonious.”

For the appeals court judge that awarded the three remaining embryos to Randy last year, the issue was a relatively simply contract question. Augusta agreed in writing that the embryos would be destroyed if the couple divorced.

Rebecca Reitz, Augusta's attorney, said the issue that the highest court in Texas is being asked to address is whether women have a constitutional right to their own eggs, particularly women like Augusta who cannot become pregnant in the traditional way.

On the contract question, Augusta had just as much right to change her mind about having the embryos destroyed as Randy did to stop the procedure at the last minute, Reitz said.

“There was a consent form that allowed both parties to withdraw their consent if they changed their minds,” Reitz said. “Randy changed his mind and decided he didn't want Augusta to implant. And Augusta changed her mind, and withdrew her consent to destroy the embryos at the time of divorce.”

The Texas Court of Appeals has yet to decide whether it will consider the case.