by Susan Brinkmann, OCDS
Staff Writer
(May 16, 2008) What happens to a couple’s frozen embryos in the event of divorce? The U.S. Supreme Court sent a strong signal yesterday when they refused to hear the appeal of a Texas nurse who has been battling for custody of three frozen embryos she created with her husband before their divorce. The embryos are now slated for destruction.
The case involves Augusta and Randy Roman of Houston who have been engaged in a protracted legal battle over the disposition of the three embryos they created just prior to their 2002 divorce. The embryos were slated for implantation on April 20, 2002 but the night before the procedure, Randy, a NASA technician, announced that he had changed his mind. The couple eventually divorced and Augusta has been fighting for the lives of the embryos ever since.
Unfortunately, she and her husband signed an agreement stating that any embryos not implanted would be destroyed should the couple ever divorce. Although Augusta withdrew her consent for their destruction during the divorce proceedings, and has agreed to release Randy from any financial obligation for the children, her husband refuses to let the children be implanted. Over the last five years, he has repeatedly managed to convince the courts to prevent the procedure from taking place.
Randy’s attorney, Greg Enos, explained to the Today show that his client would not be able to father children without being involved in their lives.
“A lot of fathers in our society have children and turn their backs on them,” Enos said. “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.”
This is only one of many unique legal situations that are resulting from the complicated world of artificial procreation. In 2004, a California woman was awarded $1 million in damages when a clinic implanted her with the wrong embryos and didn’t tell her until the child was 10 months old. A similar case occurred in the UK when a white couple was mistakenly impregnated with the twin children of a black sperm donor. After a two year court battle, the donor was ultimately declared the biological father of the children.
In cases concerning the disposition of frozen embryos after parents divorce, when one party is against implantation, the courts have tended to side with the individual’s right not to be forced into parenthood.
The case that set this precedent took place in Tennessee in 2003 where Mary Sue and Junior Davis divorced and left seven frozen embryos in a fertility clinic. Mary Sue wanted the children implanted and brought to life, but Junior did not want his children born post-divorce. The court ultimately decided that Junior Davis had a “constitutionally protected right not to beget a child where no pregnancy has taken place” and held that “there is no compelling state interest to justify ordering implantation against the will of either party.” The Court of Appeals further held that “the parties share an interest in the seven fertilized ova” and remanded the case to the trial court for entry of an order vesting them with “joint control . . . and equal voice over their Disposition.”
According to an article written by Robyn Shapiro and appearing on the American Bar Association website, only two states have enacted legislation that addresses prior embryo disposition agreements. Florida law requires that couple undergoing IVF must enter into a written agreement that provides for the disposition of embryos in the event of death, divorce, or other “unforeseen circumstances”; and in the absence of a written agreement, the gamete providers are given joint authority.
A 1986 Louisiana law declares that an in vitro fertilized ovum is a “juridical person” that can be disposed of only through implantation. Other options, such as donation for research, or destruction, are prohibited.
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Women of Grace Study Questions:
1) Why does the Catholic Church condemn the freezing of embryos? (See Part 1, No. 6 in Donum Vitae (The Gift of Life) available here: http://www.usccb.org/prolife/tdocs/part1.shtml)
2) Why does the Catholic Church teach that procreation must take place within marriage?
(See Section A, No.1 in Donum Vitae available here: http://www.usccb.org/prolife/tdocs/part2.shtml )
