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Click here for the full text of this decision FACTS:Augusta and Randy married July 5, 1997. After a few years of marriage, the parties began trying to have children. When the traditional avenues of childbirth proved unsuccessful, the parties tried artificial insemination. Several attempts at artificial insemination likewise proved unsuccessful. In August 2001, the parties met with Dr. Vicki Schnell, the medical director at the Center for Reproductive Medicine. Augusta had laparoscopic surgery and three more attempts at artificial insemination, but still did not get pregnant. Dr. Schnell then recommended that the parties try in vitro fertilization. On March 27, 2002, the parties signed a number of documents at the center, including one entitled “Informed Consent for Cryopreservation of Embryos.” In this document, the parties authorized the storage of the embryos in a frozen state until the center determined that appropriate conditions existed for transfer of the embryos to the woman’s uterus and both husband and wife agreed to the transfer. In addition, the parties chose to discard the embryos in case of divorce. The document also contained a provision that allowed the parties to withdraw their consent to the disposition of the embryos and to discontinue their participation in the program. On April 17, 2002, 13 eggs were extracted from Augusta. Six of these eggs were successfully fertilized with Randy’s sperm, resulting in six embryos. Of the six embryos that were fertilized, only three reached a stage of development to warrant the cryopreservation process. Schnell scheduled Augusta’s implantation for April 20. On the night before the implantation, Randy withdrew his consent to the implantation scheduled for the next day. The next day, the parties told Schnell that Augusta would not undergo the implantation procedure. A month after they decided to wait, the parties signed an agreement to unfreeze three embryos and implant them. The agreement was contingent on the parties’ obtaining approval from a counselor. That agreement never took effect because Randy and Augusta did not progress through counseling. On Dec. 10, 2002, Randy filed for divorce and Augusta filed a counterclaim for divorce that included claims for fraud and intentional infliction of emotional distress. The parties reached a final binding agreement during mediation as to the division of the marital property, except for the frozen embryos. At trial, Randy asked the trial court to uphold their written agreement, which specified that the embryos be discarded. Augusta wanted the opportunity to have the embryos implanted so that she could have a biological child. If any children were born from the embryos, Augusta stated that Randy would not have parental rights or responsibilities. The day after the trial ended, the trial court ordered that Augusta take possession of the remaining three embryos. After the trial court awarded the embryos to Augusta, Randy complied with section 160.706(a) of the Texas Family Code, which allows him to seek parental rights to any child born from the embryos. HOLDING:Reversed and remanded. Randy argues that the trial court erred when it awarded the three frozen embryos to Augusta because the award violated the parties’ embryo agreement. Randy contends that the agreement clearly provided for disposal of the frozen embryos in the case of divorce and that the trial court erred by not enforcing the agreement. After surveying other jurisdictions, the court finds an emerging majority view that written embryo agreements between embryo donors and fertility clinics to which all parties have consented are valid and enforceable, so long as the parties have the opportunity to withdraw their consent to the terms of the agreement. After reviewing legislation, the court finds that the public policy of this state 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, death or changed circumstances. “We believe that allowing the parties voluntarily to decide the disposition of frozen embryos in advance of cryopreservation, subject to mutual change of mind, jointly expressed, best serves the existing public policy of this State and the interests of the parties. We hold, therefore, that an embryo agreement that satisfies these criteria does not violate the public policy of the State of Texas.” The court reviews the evidence and holds that the embryo agreement provides that the frozen embryos are to be discarded in the event of divorce. By awarding the frozen embryos to Augusta, the trial court improperly rewrote the parties’ agreement instead of enforcing what the parties had voluntarily decided in the event of divorce. OPINION:Keyes, J.; Taft, Keyes and Hanks, JJ.

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