Roman v. Roman, 193 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2006, pet. denied), cert. denied, 552 U.S. 1528 (2008).

Other Estate Planning Issues

Frozen Embryo Disposition Upon Divorce


Husband and Wife underwent medical procedures which resulted in three embryos which were frozen for later implantation. In writing, they agreed to discard the embryos in case of divorce. When a divorce action ensued, however, Wife was successful in obtaining a court order permitting her to take possession of and use the embryos. The trial court explained that the embryos were community property and that awarding them to Wife was a “just and right and a fair and equitable division” of the property. Roman at 43. Husband appealed.

In this case of first impression in Texas, the appellate court reversed holding that the agreement to discard the embryos upon divorce was binding on the parties. The court conducted an extensive review of cases from other jurisdictions which have addressed the validity and enforceability of this type of agreement. The court also studied the Texas statutes governing assisted reproduction and recognized that “[n]oticeably absent from [the statutes] is any legislative directive on how to determine the disposition of the embryos in case of a contingency such as death or divorce.” Roman at 49. The court also determined that case law contained nothing “incompatible with the recognition of the parties’ agreement as controlling. Id. Accordingly, the court concluded that “the public policy of [Texas] would permit a husband and wife to enter voluntarily into an agreement, before implantation, that would provide for an embryo’s disposition in the event of a contingency, such as divorce.” Roman at 49-50.

The court then analyzed the agreement and determined that it was an enforceable contract because it “manifests a voluntary unchanged mutual intention of the parties regarding disposition of the embryos upon divorce.” Roman at 50.

Moral: Individuals contemplating assisted reproduction must carefully anticipate the impact of changed circumstances such as divorce.