Webster, Texas — AFTER two years of infertility treatments -- from temperature monitoring and artificial inseminations to hormone injections and laparoscopic surgery -- Augusta Roman felt her last, best hope for bearing a child was only hours away. Her doctor had retrieved 13 eggs from her ovaries, and six had been fertilized with the sperm of her husband, Randy Roman.
Ten hours before the embryos were to be implanted in Augusta's womb, Randy emerged from their study and broke unfathomable news: Despite all she had endured, he couldn't go through with it.
The doctor's call announcing the creation of the embryos had crystallized nagging doubts about their marriage that he had harbored for years. He insisted on canceling the procedure and freezing the embryos while they attempted counseling to work through their differences.
"It was like somebody had just squeezed the life out of me," Augusta recalled. "My heart was heavy like it was going to bust."
Counseling failed, and in August 2003, 16 months after the canceled embryo transfer, the couple mediated the dissolution of their six-year marriage. She got the house in this Houston suburb, near NASA's Johnson Space Center, and most of the furnishings. He got the 32-inch Sony TV, a futon and dinette set, and the 1998 Honda Civic.
They could not agree, however, on the disposition of one piece of community property -- the three embryos of the original six that had survived the freezing process.
Augusta wanted to take possession and have them implanted, agreeing to release Randy from any financial or parental obligation. Randy wanted the embryos destroyed, or at least frozen indefinitely. He argued that even though he did not want to raise children with Augusta, he would never disavow his genetic offspring. As he would point out in court, the couple had initialed a cryopreservation consent form stipulating that should they divorce, any frozen embryos "shall be discarded."
Roman vs. Roman now rests with the Supreme Court of Texas, one of a number of divorce cases nationwide in which the custody dispute has revolved around microscopic clumps of cells that are considered -- by most states, at least -- to be property and not human life.
Advances in assisted reproduction have created a legal landscape that judges and lawmakers could hardly have envisioned before 1984, when an Australian baby became the first created from a frozen embryo (the first U.S. birth came two years later). Since then, in vitro fertilization, or IVF, has become an immensely popular solution to fertility problems worldwide.
Because many IVF cycles generate more embryos than are actually used, hundreds of thousands of excess embryos remain in frozen storage in fertility clinics. A 2003 survey concluded there were about 400,000 frozen embryos in the U.S. alone, and some authorities estimate the number is growing by 50,000 a year.
Embryo storage and maintenance has become a huge headache for fertility clinics, which often cannot coax couples into either destroying or donating them to research or to other couples. It is unclear how long embryos can remain frozen and still generate a pregnancy, but the current record is 13 years. Often, fertility clinics lose contact with the embryos' owners well before then.
And with some regularity, couples separate without clear agreements about embryo disposition.
Because there is no federal precedent for settling such disputes, state courts have been left to make Solomonic decisions on embryo custody.
To date, the top courts of six states have ruled in such cases. While the case particulars have varied, a trend has emerged. In general, the courts have held that the right of one ex-spouse to not procreate trumps that of the other to procreate.
In the first case, the Tennessee Supreme Court found in 1992 that embryos were not, "strictly speaking, either 'persons' or 'property,' but occupy an interim category that entitles them to special respect because of their potential for human life." Yet the court ruled that the individual wishing to "avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood" by other means. There had been no written agreement between the husband and wife in that case.
Subsequent cases have focused on the consent forms signed by couples before embryos could be frozen, but the courts have aligned in their unwillingness to compel parenthood. In 2000, for instance, the Massachusetts Supreme Judicial Court refused to award four frozen embryos to a divorced woman, even though she and her former husband had agreed in writing that she would get them in case of a split.
"Prior agreements to enter into familial relationships (marriage or parenthood) should not be enforced against individuals who subsequently reconsider their decisions," that court wrote.