Here's the gist of it: Augusta Roman tried for several years to have a child before resorting to fertility treatments. The day before the embryos were to be implanted, her husband, Randy, told her he wanted to wait until they had resolved their problems. After six months of counseling, they divorced.

The dispute escalated as the fertility lab consent form clearly stated that in the event of divorce, the embryos would not be implanted and would be discarded. Augusta sued and was granted control of the embryos in the Trial Court but her husband appealed the case; the Appeals Court unanimously reversed the lower court. Augusta then appealed to the Texas Supreme Court which recently refused to hear the appeal, thus upholding the Appellate Court's decision.

The case raises a moral and legal dilemma for August, 45, who regards the embryos as her unborn children. She said she would sign away any support responsibility for the divorced husband. Her attorney attempted to distinguish this consent form from an enforceable contract.

While I commiserate with Augusta's sincere desire to become a mother, it would be bad public policy to ignore the clear meaning of the consent form. In fact, the form had an option, if chosen by both parties, for releasing the embryos to either spouse. But neither made that choice and instead, checked the option to discard the embryos.

Andy didn't want a child after the divorce and even though Texas law protects anonymous sperm donors from child support, this is a different case. There is legal precedent for sperm donors to be liable for support. Family courts could award financial support despite the waiver by the wife.

A cutting edge case like this one doesn't always make good law. Here the intentions of the parties were clearly stated in the consent form which is regarded as a legal contract. We feel badly for Augusta. What do you think?

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