Whose Egg Is It, Anyway? An Embryo-Custody Battle

She’s desperate to bear a child; he refuses to be the father. While Augusta and Randy Roman duke it out in court, three embryos they created together are on ice. Welcome to the custody battle of the future.

By Louise Farr

Divorce & a Bitter Embryo Custody Battle
Somehow, Augusta and Randy coexisted in the same house, eating together but sleeping in separate rooms: "I tried to make things as normal as possible," she says. Finally, in December 2002, Randy filed for divorce. In the settlement, Augusta got the house and Randy got the 32-inch Sony TV and some furniture. The embryos’ fate was still to be decided.
"I think Augusta absolutely deserves to have them," says her lawyer, Rebecca Reitz. "I just don’t think the in vitro process should create the veto that the law seems to give men over women. The effect has been that the husband can say, ‘I don’t want you to have this child.’"
Reitz is 52 and intense, with white-blond hair, lively blue eyes, and a throaty voice. A former dental hygienist, she earned a law degree at 40 after promising her attorney husband, who is 18 years older, that she’d take care of him forever if he’d put her through law school. She jokes that she once took on clients only if they liked her King Charles spaniel. But she warmed to Augusta within minutes of speaking with her. There was, undeniably, the intriguing possibility of making Texas law where none existed. But equally significant, Reitz says, was Augusta’s sincerity.
"She has a quiet, simple desire to have her child," Reitz says, adding that if Augusta were pregnant — by any means — "Randy Roman could not have forced her to have an abortion or to give the child up for adoption."
In February 2004, the Romans finally went head-to-head in a bench trial before the Honorable Lisa A. Millard, whose Harris County courtroom is decorated with drawings by her grandchildren. Reitz argued, among other things, that her client believed that life begins at conception. (Augusta now deeply regrets her two abortions and sees her current infertility as some sort of divine retribution.) By not awarding Augusta the embryos, Reitz said, the court would be denying the plaintiff her constitutional right to procreate.
"If you are not awarded these embryos to implant in your womb, do you believe you’ll ever have children of your own?" Reitz asked her client. "I don’t," Augusta replied.
When Randy’s lawyer, Gregory Enos, asked her about adoption as an alternative, she again stressed her desire for a biological child and her firm conviction that the embryos were her children.
As for the agreement Augusta and Randy had signed with the Center of Reproductive Medicine, Augusta said she thought it was with the clinic, not between her and Randy. In addition, she testified, one section of the document referred to "remaining" embryos. Augusta says that when she checked the box, she thought she was agreeing to discard embryos left over after an implantation. And that implantation had never occurred.
Augusta was willing to relieve Randy of financial and emotional responsibility for any children that resulted from her pregnancy and to keep his name off their birth certificates. But when questioned by Enos, Randy testified that he hadn’t intended to be a mere sperm donor and was greatly disturbed by the thought of Augusta raising his children alone. "I believe in the traditional nuclear family," he said.
If the court did award Augusta custody of the embryos, he would take responsibility for any children, he said. But, he added, "[the embryos] were not created to be used against my wishes." "[Why] would it matter to you that she’s out there with children that have your DNA?" Enos asked.
"I could not bear the emotional consequences of being forced out of my child’s life," Randy replied. "And if my DNA does bring a child in[to] this world, I would want to be a father in every sense of the word, such as financial, emotional, spiritual, soccer, Little League, everything else in between."
Rather than asking to discard the embryos, Randy was now requesting permanent cryopreservation. "Is it just easier on your conscience to have them frozen forever instead of having them destroyed?" Reitz asked. Enos objected, and Millard sustained before Randy had a chance to answer.

Share Your Thoughts!


Post new comment

Click to add a comment