Roman v. Roman, 193 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2006, pet. denied), cert. denied, 552 U.S. 1528 (2008).
Husband and Wife underwent medical procedures which resulted in three
embryos which were frozen for later implantation. In writing, they
agreed to discard the embryos in case of divorce. When a divorce action
ensued, however, Wife was successful in obtaining a court order
permitting her to take possession of and use the embryos. The trial
court explained that the embryos were community property and that
awarding them to Wife was a “just and right and a fair and equitable
division” of the property. Roman at 43. Husband appealed.
In this case of first impression in Texas, the appellate court reversed
holding that the agreement to discard the embryos upon divorce was
binding on the parties. The court conducted an extensive review of cases
from other jurisdictions which have addressed the validity and
enforceability of this type of agreement. The court also studied the
Texas statutes governing assisted reproduction and recognized that
“[n]oticeably absent from [the statutes] is any legislative directive on
how to determine the disposition of the embryos in case of a contingency
such as death or divorce.” Roman at 49. The court also determined that
case law contained nothing “incompatible with the recognition of the
parties’ agreement as controlling. Id. Accordingly, the court concluded
that “the public policy of [Texas] would permit a husband and wife to
enter voluntarily into an agreement, before implantation, that would
provide for an embryo’s disposition in the event of a contingency, such
as divorce.” Roman at 49-50.
The court then analyzed the agreement and determined that it was an
enforceable contract because it “manifests a voluntary unchanged mutual
intention of the parties regarding disposition of the embryos upon
divorce.” Roman at 50.
Moral: Individuals contemplating assisted reproduction must carefully
anticipate the impact of changed circumstances such as divorce.