Whose Life is it Anyway? Texas Public Policy and Contracts to Kill Embryonic Children

Abstract

The Texas case of Roman v. Roman presents the question of whether contracts can bind couples to the destruction of their embryonic children absent any attempt at implantation. In 2006, the Texas Court of Appeals for the First District was asked to determine the fate of three frozen embryos conceived during marriage but whose implantation was blocked by their father’s refusal to consent to their transfer into their mother’s uterus. This Article describes the mother’s fight to preserve the lives of her embryonic children and argues that the Texas appellate court’s acceptance of ambiguous contractual terms created an unjust result that conflicted with the intentions of the mother at the time the embryos were to be discarded.

Part I of this Article tells the story of Augusta and Randy Roman’s creation of embryonic children. This is followed by a brief history of the couple’s legal dispute regarding the disposition of the embryos in Part II. Part III examines the issues surrounding the use of contract law to resolve the issues presented in the case and concludes that the appellate court’s acceptance of contractual claims resulted from its misinterpretation of Texas statutes regarding assisted reproduction and its failure to consider strong public policies that are frustrated by agreements to discard human embryos. The Article concludes by considering possible jurisprudential consequences that might have resulted from a final decision setting aside the contractual claims and awarding the embryos to Augusta for implantation.

Keywords: family law, embryonic children, reproductive law, human dignity, human life