Law News

Court of Appeals Refuses to Freeze Out Father in Frozen Embryo Paternity Fight

Nathan Koppel
Texas Lawyer
April 19, 1999

Houston’s 1st Court of Appeals has settled the score for now in the nation’s first custody battle over a daughter born of a frozen embryo. On April 8, the court sided with the father, who was attempting to exercise parental rights over the baby.

The case pits Houston auto magnate Don McGill against his ex-wife, Mildred Schmit, who created an embryo through in vitro fertilization. Several months after the couple divorced in 1996, Schmidt had the then-frozen embryo implanted, which begat Olivia Grace McGill.

McGill filed suit, claiming paternity rights to Olivia. Schmit, though, argues McGill lost such rights when the couple divorced without agreeing about what to do with the embryo. At that point, Schmit claims, McGill became a mere sperm donor.

In In the Interest of Olivia Grace McGill, the 1st Court affirmed a trial court’s award of paternity rights to McGill, citing the fact that he is Olivia’s biological father, was named as such on her birth certificate and signed a statement of paternity. It added, moreover, "depriving McGill of paternity rights would bastardize [Olivia]."

The opinion was written by Justice Eric Andell and joined by Justices Margaret Mirabal and Davie Wilson.

While no A-list celebs were mentioned in the court’s holding, they have shown up in the attorneys’ rhetoric.

Earle S. Lilly, Schmit’s attorney, says Olivia would be no more bastardized than the children of Madonna or Rosie O’Donnell, both single mothers.

"[Bastard] is an ugly word. . . . It is unnecessary, and it shouldn’t have been in [the opinion]," says Lilly, of Houston’s Piro & Lilly. "If that term applies, then it applies to all single women who have children without the benefit of a husband through assisted conception." Lilly says he’ll appeal.

"Rosie’s adopted child is nowhere in the same bailiwick," counters McGill’s attorney, Roy W. Moore of Houston. "If a woman decides to have a child with a husband who has fertilized her egg and then decides to place his name on the birth certificate, which she can’t do without a husband’s permission, then she [is saying], ‘Hey, he’s the daddy.’ "

The Houston court noted the absence of case and statutory law governing the rights of parties involved in the in vitro fertilization process, and it left it to the Legislature to fill the void. Instead, it reached the conclusion that McGill enjoys paternity rights, the court noted, based merely on the facts of the case.

While the law remains unsettled, Moore, of Gray & Moore, says he is playing it safe.

"When I interview people now who are getting divorced, I ask them, ‘Are there frozen embryos out there?’ If there are, I tell them, ‘We need to take care of them.