Her embryos or his?

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.

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.

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THEIR lawyers believe such a case could provide the court with one of several means to undermine another Texas reproductive rights case, Roe vs. Wade, the 1973 decision that guaranteed a right to abortion. In that case, the justices explicitly avoided speculating on when life begins, but asserted that the unborn are not “persons” as encompassed by the 14th Amendment. Absolved of the need to balance the rights of the unborn against those of a pregnant woman, the court found that a woman’s right to privacy allowed her to terminate a pregnancy.

However, the Roe decision came five years before the birth of the first test-tube baby. Socially conservative legal theorists, buoyed by the court’s recent decision to uphold a ban on the midterm abortion procedure known as intact dilation and extraction, which opponents call “partial-birth abortion,” believe a case involving frozen embryos could give an increasingly conservative court one vehicle for reconsidering the rights of the unborn, and to do so apart from the issue of a woman’s right to control her own body. If their view held, Augusta Roman would gain control over the embryos.

Augusta and her lawyer, Rebecca Reitz, argue that what distinguishes their case from its predecessors is that Augusta has never had children, and has no hope of producing them without the three frozen embryos. An intensive-care nurse who immigrated from Nigeria as a student in 1983, Augusta will be 47 in August.

That is too old for another round of in vitro fertilization, and her fertility doctor has estimated that her chance of getting pregnant with the existing embryos is less than 10% -- and falling. Lawyers on both sides do not expect the Texas Supreme Court to decide whether to hear oral arguments in the case until late this year; a federal appeal would take years more.

A former bodybuilder, Augusta met her future husband at a local gym in 1996. Randy Roman was an aerospace technician who had moved to Texas from Northern California. Both were in their mid-30s and ready to settle down. They shared a desire to start a family and a common Christian faith -- or thought they did.

They married after a brief courtship, and Augusta acceded to her husband’s suggestion that they wait two years before trying to have children. They bought a house that came ready-made with a girl’s room papered in pink and a boy’s room decorated with animal prints. When they did start trying, she got pregnant quickly, but miscarried 10 weeks later. After an additional six months of fruitless attempts, doctors determined that Augusta had a fertility problem, and she began round after round of treatments.

On the night before the scheduled embryo transfer, the couple went out for Chinese food. Upon returning home, Augusta changed into her nightgown and settled in to watch the news. That is when Randy told her they needed to talk, and presented her with a handwritten bill of complaints. Foremost was his claim that he perceived her as being “hostile to God.”

There had been minor disputes over religion in the past. Augusta had complained about the tithes Randy gave to a family that he considered his spiritual advisors. And Randy -- a Pentecostalist but not a regular churchgoer -- had bristled at Augusta’s occasional criticism of televangelists. The previous year, Randy had confided his concerns about Augusta’s faith to her sister, but he had never mustered the courage to confront his wife.

Randy said it was difficult for him to explain exactly how and when his perception of his wife and their marriage had changed. But he said the creation of the embryos, and the permanence they might bring to their relationship, finally moved him to act.

“The reality of my thoughts and feelings hadn’t really come together until that moment,” he said. “I woke up from a dead sleep, staring at the ceiling, saying, ‘Oh, gosh, something’s not right.’ I really was like a deer in the headlights. I thought, ‘This is a reality like no other reality.’ ”

Augusta was bewildered, furious and hysterical. She thought Randy sounded crazy, and chafed at his assertions that the Bible required her to submit to his will. She could not believe that he had allowed her to undergo surgery and watched as she injected herself twice daily with hormones without saying a word.

“Why put somebody in that situation?” she asked. She said she stayed up all night crying. The next morning, they showed up at the Center of Reproductive Medicine and instructed Dr. Vicki L. Schnell to freeze the embryos.

Three weeks earlier, the couple had signed consent forms in Schnell’s office, initialing options that called for frozen embryos to be discarded in case of divorce and awarded to the surviving spouse in case of death. Randy said they briefly discussed the options; Augusta said that there was no discussion and that she signed almost unthinkingly.

Augusta said she understood the consent to cover only those embryos that might remain after the initial implantation. Because she could not possibly predict that Randy would withdraw, it never occurred to her that signing the form might effectively deny her all of the embryos.

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.”

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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.”

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kevin.sack@latimes.com