Texas Court Awards Husband Frozen Embryos in Divorce

Fertility treatments and assisted reproductive techniques can be a miracle for many families.  They may also, however, lead to complicated family law issues.  A former wife recently appealed a judgment awarding frozen embryos to her former husband in the divorce.

According to the appeals court’s opinion, the parties utilized IVF treatment and still had three embryos in cryogenic storage at the time of the divorce.

The parties signed a “Consent Form Cryopreservation of Embryos” (“Agreement”) that addressed the storage of the embryos and made them subject to the disposition of the husband if the parties divorced.

Embryos Awarded to Husband

When the wife filed for divorce, she listed two children born of the marriage and asked the court to divide the marital estate in a just and right manner.  The husband likewise listed the two children and requested a just and right division.  Neither party listed the embryos as children of the marriage.

The Agreement was admitted into evidence.  The Agreement stated the embryos were subject to the husband’s disposition if the parties divorced.  The wife testified she read and signed the Agreement.  The husband testified he thought they both understood the Agreement and the wife never told him otherwise.  He testified he did not make her sign it.  The wife testified she did not understand what she was signing and did not understand it to be enforceable by one spouse against the other.  She testified she had not intended to relinquish future parental rights or for the embryos to be implanted in someone else.

The trial court awarded the embryos to the husband and made him responsible for any fees related to them.  The judgment divested the wife “of all right, title, interest, and claim in and to the remaining frozen embryos. . .”

Appeals Court Concludes Frozen Embryos Are Not “Unborn Children”

Dobbs v. Jackson Women’s Health Org. was decided after the final order of divorce was rendered in court, but before the final judgment was signed.  The Supreme Court held in Dobbs the U.S. constitution does not guarantee the right to abortion.  Shortly after the decision the wife moved for reconsideration based on a change in law.  The wife moved for a new trial and then appealed when that motion was overruled by operation of law.

She argued the trial court erred in failing to grant her a new trial after a significant change in applicable law.  The appeals court noted that Dobbs did not determine rights related to frozen embryos before uterine implantation and was therefore not “applicable” law.

The wife argued the embryos met the definition of “unborn child” in Texas Health and Safety Code Section 170A.001(5), which took effect following the Dobbs decision.

The appeals court rejected this argument, pointing out the wife was using the definition in a context that was not intended by the legislature.  The definition is in the chapter titled “Performance of Abortion.”  The appeals court considered the context and the other definitions in the statute and concluded the definitions were “not established to apply to any other situation [than abortion].”

The wife also argued the court erred by treating the embryos as property because they were instead “unborn children.” The appeals court rejected this argument because it rejected the wife’s position the embryos were unborn children.

Agreement Is Enforceable Between the Spouses

The wife argued there was no “privity of contract” between her and the husband with regard to the Agreement.

The appeals court cited Roman v. Roman, in which the parties had signed a similar agreement with their IVF clinic.  That agreement provided the embryos would be discarded if the parties divorced. The trial court, however, awarded the embryos to the wife.  The appeals court reversed, noting the elements of a binding contract.  The appeals court held the agreement was not against public policy, was enforceable as a contract between the spouses, and was clear and unambiguous in what was to occur if the parties divorced.

The appeals court in this case similarly concluded that the Agreement met the elements of an enforceable contract.  It was also clear and unambiguous in setting out the parties’ intent.  The parties agreed the husband had the right to dispose of the embryos if the parties divorced.

The wife argued the appeals court should not follow Roman, but the appeals court pointed out there had been no Texas case law or legislative action addressing the issue since.  The appeals court concluded the legislature’s failure to address Roman’s holding indicated acquiescence and therefore found no abuse of discretion in the trial court’s treatment of the embryos as property.

The appeals court also rejected the wife’s argument the trial court improperly terminated her parental rights, again based on its conclusion the embryos were not “unborn children.”

Trial Court Did Not Create Gestational Agreement

Finally, the wife argued the trial court created a gestational agreement that violated the Texas Family Code.  A “gestational agreement” is a written agreement between the prospective gestational mother, her husband, the donors, and the intended parents.  No gestational mother or intended parents were involved in the case.  Additionally, the other requirements for a gestational agreement were not met.  The trial court did not create a gestational agreement by awarding the embryos to the husband and divesting the wife of her interests.

The appeals court affirmed the trial court’s judgment.

Seek Advice from a Skilled Texas Divorce Lawyer

This case shows that couples undergoing fertility treatment should fully review and understand any agreement with the clinic.  They should carefully consider what will happen to any remaining embryos in the case of divorce or death.  If you are considering divorce, an experienced Dallas family law attorney can review any existing agreements and advise you on your rights.  Call McClure Law Group at 214.692.8200 for a consultation.

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