The Rising Number of Frozen Embryos Has Created a New Kind of Custody Battle

The rising number of frozen embryos in the United States has created a new kind of custody fight with the usual lawyers and angry spouses, but one profound difference.

The parents aren’t arguing about where a child will live, but whether it will be born.

Augusta and Randy Roman married after a whirlwind courtship in 1996. Two years later, they began trying for a baby, but doctors determined that Augusta had fertility problems. Over the next couple of years she underwent extensive, often painful fertility treatments, with Randy by her side.

"All along he was very supportive. We would go to places where there were children and he would talk about what a good mom I would be," she said.

Doctors harvested 13 eggs from Augusta, fertilizing six with Randy’s sperm. But the night before the embryos were to be implanted, Randy delivered shocking news to his wife.

He wanted to put the procedure on hold because he had doubts about their relationship. Augusta said he wanted her to be closer to God before they had children.

"I was devastated," she said. "It was just like a bad dream."

Baby Battle Heads to Court

The couple froze their six embryos, but three didn’t survive the freezing process. Augusta and Randy went into counseling. It didn’t help, and they divorced more than a year later.

The courts awarded custody of the embryos to Augusta, who still wanted to have them implanted. But Randy argued the couple had signed a consent form stipulating that any remaining embryos should be destroyed in the event of divorce. He appealed the judge’s decision and won.

"If those agreements aren’t honored, fertility clinics aren’t going to be willing to freeze embryos and that will have a profound effect on all the couples in the future who want to try and have children," said Greg Enos, Randy’s attorney.

Augusta and her attorney argue that the consent form was meant only to cover any additional embryos that remained after the implantation process. Because Augusta and Randy had intended to implant all of their existing embryos – leaving no extras – she says his argument doesn’t apply.

The case will soon head to the Texas Supreme Court. Enos said his client didn’t want to become a parent against his will, but Augusta plans to fight for what she believes is her last chance to have children.

"I pray they will survive all this fighting, that I can have them one day and be a happy family, be able to tell them how much I love them," she said.