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

The Bigger Picture: Embryos in Divorce Cases
There are now estimated to be close to half a million frozen embryos in the United States. Although President Bush has declared embryos to be "unique and genetically complete, like every other human being," there is no national policy defining what, exactly, they are in the eyes of the law. Thus, there is no policy about what to do with any "leftovers." Are they property or human life? Potential life, because they can’t thrive outside the womb? Or "microscopic Americans," as the conservative newspaper columnist Deroy Murdock has called them?
So far, the half-dozen state supreme courts that have handed down opinions about embryos in divorce cases have sided with the individual’s right not to be forced into parenthood. The first such case, in Tennessee, came closest to clarifying the status of embryos. It was 1992 — still early in the era of IVF treatment — and Junior and Mary Sue Davis hadn’t signed an agreement. When they divorced, the lower court boldly declared their embryos "human beings" and gave them to Mary Sue. Junior appealed, and the Tennessee supreme court decided in his favor, stating that the partner who didn’t want to procreate should generally prevail, an opinion that courts in subsequent cases across the country have followed. The court also declared embryos neither human nor property, but "occupying an interim category deserving a special respect." It ordered them destroyed.
No one tracks exactly how many couples divorce before their embryo implants take place. Usually such disputes are resolved informally, says Barbara Katz Rothman, a sociology professor at Baruch College and author of Recreating Motherhood. "Cases don’t come up when things are going well," she says. "So you always end up with crappy, weird, unusual situations when everything else in the world that usually works" — from informal negotiations between the couple to the pressures and pleadings of family and friends — "has failed. It’s not particularly sensible for these cases to be used as the basis for judging what happens to everybody else."
One case that began with discord yet didn’t become a state supreme court battle was that of Allison Le Compte, 46, owner of a Houston human resources management company, whose divorce became final in 2005. Le Compte’s attorney husband wanted to keep the 13 remaining embryos from two IVF cycles (which had produced their three children). Le Compte wanted to donate the embryos. "I was a little hesitant about giving mine up to an infertile couple," she says. "But I knew I was done." The divorce was so contentious that ultimately Le Compte decided to let the issue slide. She hasn’t even called the clinic to see whether the embryos remain in storage. But she can sympathize with Augusta. "Bless her heart. I don’t blame her," Le Compte says. "Genetically, she knows what she’s got, and those were her children."
This past February, to Augusta’s dismay, Texas’s first court of appeals overturned Lisa Millard’s ruling and ordered the Romans’ embryos destroyed, based on the clinic contract they signed. The court did not address Randy Roman’s claim that he shouldn’t be forced to father children he didn’t want. In March, claiming that the appellate court had misinterpreted the contract and failed to weigh Augusta’s interests against Randy’s, Pamela George (a former law school professor of Reitz’s) filed a motion for the court to rehear the case. By donating his sperm, she also argued, Randy had already consented to fatherhood, and it was too late for him to change is mind. The court declined a rehearing. As MORE went to press, Augusta’s legal team was preparing an application to the state supreme court.

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