The Texas Supreme Court is considering whether to take up a case that could have Alabama-esque impacts on in vitro fertilization in Texas.
What began as a Denton divorce has grown into a larger battle over whether a frozen embryo can be defined as a person. The court has not yet said whether it will take up the case, which centers on three frozen embryos created by Caroline and Gaby Antoun.
Before beginning IVF, the couple signed an agreement saying Gaby Antoun, the husband, would get any remaining frozen embryos in case of a divorce. A trial court and appeals court have upheld the contract, citing long-standing legal precedent that embryos are quasi-property that can be governed by a contract.
But Caroline Antoun, the wife, argues that Texas鈥� new abortion laws require frozen embryos to be treated as people and handled through the child custody process instead.
鈥淣ow that Roe is no longer law, the Court has the opportunity to reclassify embryos as unborn children rather than property, and to, after far too long, recognize and protect the rights of those unborn children and their parents,鈥� her lawyers, who declined to comment for this story, wrote in their petition for review to the Texas Supreme Court.
Patrick Wright, the attorney representing the husband, said this case isn鈥檛 about abortion.
鈥淚t鈥檚 a case where two people got together and were planning for their family, and they entered into an agreement,鈥� Wright said. 鈥淭his is a family issue and if 鈥� and it's a big if 鈥� the courts are getting involved, they鈥檇 be doing essentially the thing that has been complained about for years, which is adding something that's not there.鈥�
Earlier this year, the Alabama Supreme Court that frozen embryos qualify as people under the state鈥檚 wrongful death statute, leading fertility clinics to halt their work until the legislature stepped in and granted temporary protections.
While the details are different, legal experts and fertility doctors say the results of this Texas case could be similar.
鈥淩ecognizing 鈥榩ersonhood鈥� status for a frozen embryo, as requested by Petitioner, would upend IVF in Texas,鈥� the American Society for Reproductive Medicine wrote in an amicus brief. It would 鈥渋nject untenable uncertainty into whether and on what terms IVF clinics can continue to operate in Texas.鈥�
Legal precedent
For almost as long as there has been IVF, there have been legal battles over how to handle the frozen embryos in case of divorce, death or disagreement.
In the earliest case, the Tennessee Supreme Court ruled in 1992 that frozen embryos were neither persons nor property, but instead were in an 鈥渋nterim category that entitles them to special respect because of their potential for human life.鈥� Without a written contract in place, the court sided with the ex-husband, who wanted the embryos destroyed.
鈥淭he court suggests that the right not to procreate, because you cannot not be a genetic parent once it happens, is irrevocable,鈥� said Sonia Suter, a law professor at the George Washington University. 鈥淲hereas the ex-wife could theoretically be a genetic parent, so we haven鈥檛 precluded her right to be a parent.鈥�
This issue came before the Texas courts in 2006, when a man named Randy Roman wanted the courts to uphold a signed agreement saying the embryos would be destroyed in case of divorce; his ex-wife wanted to use the embryos to have a child.
the 鈥渆merging majority view that written embryo agreements 鈥� are valid and enforceable,鈥� and found that honoring these contracts 鈥渂est serves the existing public policy of this State and the interests of the parties.鈥�
In siding with Randy Roman, the judges invited lawmakers to clarify this issue if they saw fit; in the nearly two decades since, the Legislature has not taken it up. The Texas Supreme Court declined to review Roman v. Roman, so years later, when the Antouns went to the Denton County courthouse, this was the most recent state court precedent.
The Antouns married in 2014 and began IVF five years later. They implanted three embryos, resulting in two children and one miscarriage, and three remained frozen. The couple separated in 2021 and divorced in 2022. While they successfully mediated the other aspects of their divorce, including custody of their two children, they ended up going to court over the frozen embryos.
That hearing was on June 29, 2022, five days after the U.S. Supreme Court overturned Roe v. Wade. Caroline Antoun鈥檚 lawyers asked the judge to delay the case until the impact of the ruling was clearer, but the judge declined and upheld the contract, awarding the embryos to Gaby Antoun.
Two months later, Texas鈥� near-total abortion ban That same day, Caroline Antoun asked the court for a new trial, contending the law had changed in a way that would change the outcome of her case. When that wasn鈥檛 granted, she appealed.
Caroline Antoun鈥檚 lawyers argue that Roman v. Roman was invalidated by the overturn of Roe v. Wade, and the embryos should no longer be treated as property. They cite the , which defines an 鈥渦nborn child鈥� as 鈥渁n individual living member of the homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development.鈥�
鈥淏ecause fertilization has occurred, the embryos are unborn children and thus people as Texas defines them,鈥� her lawyers wrote in a brief. 鈥淭hey are unborn children and should be treated as having all the rights and constitutional protections of children.鈥�
Her lawyers also argued that treating frozen embryos as property was a return to the days of slavery, before 鈥渢he ownership of persons became an issue relegated to history.鈥�
鈥淭hat is, until the Texas Legislature accidentally revived the conception of owning people by legislatively defining life to begin at a time antecedent to pregnancy and gestation via IVF,鈥� they wrote, later saying, 鈥淭o treat a class of persons, here embryos, as lesser humans by virtue of an immutable trait, is to repeat the mistakes of our forefathers.鈥�
Gaby Antoun鈥檚 lawyers argue that the Dobbs decision did not change anything about the legal status of frozen embryos, nor the contracts that have historically governed them.
鈥淚f they say that you can鈥檛 sign these agreements, then we have a problem,鈥� Wright said. 鈥淏ecause now you're saying that people can't validly contract to create their families, in their own way, with their own choices, and now the state is imposing on decisions that families are making.鈥�
The 2nd Court of Appeals in Fort Worth agreed, that Caroline Antoun鈥檚 arguments were 鈥渁 classic example of taking a definition out of its legislatively created context and using it in a context that the legislature did not intend.鈥�
鈥淒obbs held that the United States Constitution does not guarantee a right to an abortion,鈥� the judges wrote. 鈥淒obbs did not determine the rights of cryogenically stored embryos outside the human body before uterine implantation. Dobbs is not law 鈥榓pplicable鈥� to this case, and thus its pronouncement did not justify a new trial.鈥�
Caroline Antoun then appealed to the all-Republican Texas Supreme Court. The court asked each side to brief the case, but has not yet said whether it will take the issue up.
Future of IVF
If the Texas Supreme Court were to find that frozen embryos are people and should have all the same rights as a living child, it would raise 鈥渦nimaginable鈥� questions about the realities of IVF, Suter said.
鈥淓ven if both parties agree that they want the embryos disposed, if they鈥檙e a person, can you do that?鈥� she said. 鈥淐an you kill your kids? Can you leave them in the freezer, or donate them to research?鈥�
Such a ruling would also throw into question any contracts fertility clinics have their clients sign, making cryopreservation 鈥渓egally, financially and logistically untenable,鈥� the American Society for Reproductive Medicine wrote in its brief.
Without the ability to freeze the embryos, fertility clinics would have to either transfer all the embryos at once, or fertilize only one egg at a time, ASRM wrote in its brief. Either option 鈥渨ould make IVF much more burdensome, risky, expensive and less effective,鈥� the group wrote.
And, like in Alabama, many clinics may decide to take the legally safer route and just pause all services while the uncertainty plays out, said Clare Ryan, a family law professor at the University of Alabama law school.
鈥淲hatever one鈥檚 views are about when life begins, which are deeply held views, I think it鈥檚 pretty fair to say that our current legal system as we have it just can鈥檛 sustain this kind of change without a complete rethinking of how it works,鈥� Ryan said.
Texas Right to Life, the state鈥檚 largest anti-abortion group, called for the court to rule that frozen embryos are people and, in case of divorce, should be given all the same rights as living children. They rejected the idea that this would lead to a shutdown of IVF in Texas.
鈥淏ecause this case would only set precedent for custody disputes of frozen unborn children in divorce cases, a decision abrogating Roman would have a much smaller impact than the Alabama case,鈥� they wrote in an amicus brief.
In their briefs, Gaby Antoun鈥檚 lawyers argue this is a question best left to the Legislature, an idea Ryan echoes.
鈥淭he cases before the courts are so dependent on specific facts of the case, even if the implications extend far beyond it,鈥� she said. 鈥淲hereas legislatures 鈥� have the ability to look at things more comprehensively and address, if we change this definition, what does that do for all these other areas of law.鈥�
After the Alabama ruling, Texas Gov. for families that get pregnant through IVF, and said he had 鈥渘o doubt鈥� the Legislature would take steps to ensure that remained an option.
鈥淭exas is a pro-life state, and we want to do everything possible that we can to maintain Texas being a pro-life state,鈥� Abbott told CNN at the time. 鈥淏ut at the very same time 鈥� we as a state want to ensure that we promote life, we bring more life into the world and we empower parents to be able to have more children.鈥�
IVF gets 鈥渆xceptionalized,鈥� Suter said, in conservative circles, especially as more families come to rely on assistive technologies to conceive. The Alabama legislature moved swiftly to restore access to the procedure after the court ruling 鈥� but many legal experts say this temporary legislation didn鈥檛 address the significant questions that remain.
鈥淭his issue, more than any other, really, highlights the tension between pro-birth policies and ones that are more focused on treating every embryo as a person,鈥� Ryan said. 鈥淕oing down the path of treating cryopreserved embryos as persons will inevitably reduce the number of people who can get pregnant and have children through IVF.鈥�
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