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

Embryos in Legal Limbo: The Beginning
Ten hours before Augusta Roman’s in vitro fertilization appointment at the Center of Reproductive Medicine, in Webster, Texas, her husband, Randy, announced that he had changed his mind. It was April 19, 2002, and Augusta, a registered nurse, had been resting in her nightgown on their floral-patterned living room sofa, watching the evening news. She was tired but excited. The next day was to be the culmination of nearly four years of temperature monitoring and scheduled intimacy, unsuccessful artificial inseminations, and painful fallopian tube surgery.
At 40, Augusta believed that in vitro was her last chance to have the baby she wanted so badly. Two days before, 13 eggs had been harvested from her ovarian follicles. Combined in the lab with Randy’s sperm, six of the eggs had become viable embryos, which were to be implanted in her uterus the next morning. When Randy, a NASA technician, backed out, Augusta felt as if her world were spinning out of control. But she says she knew even then that she would do whatever it took to implant her embryos.
While Augusta and Randy fought that night, the seeds of their divorce and the Roman v. Roman embryo-custody proceedings — now heading for Texas Supreme Court — were stirring to life. And as the case wends its way through the legal system, the arguments that divided the Romans hang in the air in a debate that affects a growing number of midlife women.
We are, after all, the primary customers for assisted reproductive technologies such as IVF. Back when we were in our 20s, "choice" meant having both the means and the legal right to prevent an unwanted birth. Many of us now feel that choice also means the ability to have a baby at 40, or 45, or even 50 and beyond.
But…does Augusta Roman’s desire to bring these embryos to term transcend Randy Roman’s change of heart about becoming a father? Are embryos simply community property to be divvied up in a divorce tussle, as if they were a car or a plasma TV? Or are they budding lives? Augusta insists they are, in fact, children, offspring that she has a maternal duty, a parental right, to protect. At the fertility clinic, the Romans had initialed an agreement saying the embryos would be discarded if they divorced. So maybe the answer is as simple as enforcing that contract. Or should courts favor the woman because her window of biological opportunity is so much narrower than a man’s?

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