Texas Frozen Embryo Case—In Defense of a Man’s Right to Choose

By Michael McCormick and Glenn Sacks

The Texas Supreme Court is currently considering the legal briefs in the highly publicized Roman v. Roman frozen embryo case, in which Augusta Roman seeks to implant the embryos created during her six–year marriage to Randy Roman. Randy Roman is trying to prevent this, and won a unanimous decision in the Texas First District Court of Appeal in February. Because this is a new, cutting–edge area of the law, and one which has received little judicial attention in Texas, it appears likely that the Texas Supreme Court will hear the case.

Though Augusta Roman says she will raise the child as if she had used an anonymous sperm donor, she still should not be allowed to force Randy Roman to create a fatherless child. Randy’s position — that he wanted to have a child with Augusta while they were married but not after they were divorced — is understandable. In recent TV interviews, Augusta has made it clear that she loathes her ex–husband. What man would want to bring a child into such a contentious situation? The child will grow up despising Randy for disavowing and abandoning him.

Augusta’s desire to have the embryos implanted also breaks a contractual commitment. The Court of Appeal explained:

“The [embryo] agreement specifically states, ‘If we are divorced or either of us files for divorce while any of our frozen embryos are still in the program, we hereby authorize and direct, jointly and individually, that the frozen embryo(s) shall be &hellip Discarded.’ Although the parties could have chosen to release the frozen embryos either to Randy or Augusta, they chose the option to discard the frozen embryos in the event of divorce. The embryo agreement’s language could not be clearer.”

The Court of Appeal also held that, in fertility cases, it is best that the parties themselves decide what will happen in case of divorce or other circumstances, and that they put their intentions in writing. To discard the Romans’ contractual agreement simply because it is now undesirable to Augusta is bad public policy.

Augusta and her attorney, Becky Reitz, insist that the Texas sperm donor law protects Randy from any child–support obligations. This assertion is very questionable.?Houston family law attorney Tom Martin, an expert on this law, says:

“The Texas law is a conventional one which protects anonymous donors at sperm banks — often college kids or young men who are looking for a little extra money. The facts of the Roman case are vastly different — there’s no anonymity or protections here. If the child is born and Augusta asks for child support, Randy will be out of luck.”

Moreover, even if Randy could get out of paying child support in Texas, Augusta could move to another state, wait six months to establish residency, and then ask for support. When family courts are presented with a child who does not have a child–support order and there is a known, identified father, there is practically no situation under which they will not order support. Eighteen years of child support — or 21 or 23 years, as in some states — would cost Randy several hundred thousand dollars, and saddle him with a burdensome obligation well past his retirement age.

During the case, Randy has faced a largely hostile media, which has helped Augusta portray herself as the victim of a selfish husband who, after agreeing to have a child, walked out at the last moment. It is true that Randy put the brakes on the embryo implantation at the 11th hour. What most have ignored — although it’s acknowledged by both sides — is that afterward Randy went through six months of marital counseling with Augusta to try to patch up the relationship.

The counseling didn’t work, but that hardly merits portraying Randy as a duplicitous runaway husband. Too many men have children without thinking all of the consequences through. Randy’s desire to ensure the marital relationship was strong before bringing a child into it is commendable.

Yes, it is unfortunate for Augusta Roman, who will be 46 in August, that she will never have a biological child. But two people create a child, not one. Neither should be compelled to do so against their will.