In February 2004, after a two-day trial, Harris County District Judge Lisa A. Millard ruled that Augusta should get the embryos in a "fair and equitable" property division.
Two years later, the Texas Court of Appeals reversed that decision on the grounds that the consent form constituted a valid and enforceable agreement. "Although Augusta's choice may not have been fully considered," the court wrote, "the evidence shows that she was aware of and understood the significance of her decision."
Randy's attorney, Gregory B. Enos, said that in the absence of clear statutes, the courts had little choice but to enforce such advance directives. Otherwise, he said, "if a dispute arises, you're going to have to litigate every time, and that's certainly not in the public interest."
*
AUGUSTA'S lawyers have now filed a brief with the state Supreme Court arguing that "women undergoing IVF should have the same right to control the disposition of their embryos as afforded to naturally conceiving mothers."
"These are my kids," Augusta said. "It's almost like I was pregnant and somebody says I have to give them up because he doesn't want to be a father, so get an abortion because he's changed his mind."
Randy counters that Augusta's position would reduce the legal standing of men in in vitro fertilization cases to that of mere sperm donors. "If I am the biological father of a child, I could not bear the emotional consequences of being forced out of my child's life by a court order," he testified.
He questions why Augusta has been so persistent, given her low odds of getting pregnant even if she wins.
To Augusta, that is beside the point. "Anything is possible," she said. "I am a positive person, and I'm not going to give up on these three precious embryos of mine. People can argue about whether they are children or not, but even if it's 1%, I still want the opportunity."
*
kevin.sack@latimes.com
