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Disposition of Frozen Embryos

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After two years of fertility treatments and the night before Augusta Roman was to undergo implantation of embryos created through IVF, her husband Randy informed her that he had had a change of heart and did not want to go through with the procedure. The couple  underwent counseling and then divorce. The only contested issue was their remaining three embryos.

Augusta won in the trial court, but Randy won in the appellate court. While the case was awaiting appeal with the Texas Supreme Court, both parties vowed to appeal all the way to the United States Supreme Court, which had the papers buzzing about the “legal implications for Roe v. Wade.” The argument advanced by Augusta’s lawyers in the briefs to the Texas Supreme Court was that a woman should have the same right to control the disposition of embryos outside her womb as she has of naturally conceived embryos. Randy countered that such a position would reduce men to mere sperm donors.

Ultimately, the Texas Supreme Court refused to consider the appeal and the case ended there. But the issue over which the Romans fought is bound to come up again. It is estimated that approximately half a million frozen embryos are currently being stored by fertility clinics in the United States. Patients who have not used all the embryos they have created have several options from which to choose in deciding what to do with the embryos. They can:

  • Use the embryos themselves for procreative purposes at a later date
  • Donate the embryos to others who would like to have children (sometimes referred to as embryo “adoption”)
  • Donate the embryos for medical or scientific research (primarily embryonic stem cell research)
  • Have the embryos thawed and discarded
  • Keep the embryos frozen indefinitely

Whether overwhelmed by the complexity of the decision or simply because they are never pressed to make a decision, some couples opt for a sixth unofficial option: abandonment. In response to the latter, some fertility clinic contracts now require that if a couple fails to pay storage fees or remain in touch with the clinic, the embryos will become the property of the clinic after a specified period of time and can be destroyed or used for research. But there is little statutory or case law to provide clinics and patients with guidance.

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