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.
As the cases proliferate, the odds grow that the issue may eventually come before the U.S. Supreme Court. Augusta and Randy Roman said in recent interviews that they intended to appeal to the higher court if they lost in Texas.
