Texas Supreme Court rejects case that could have imperiled IVF access

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The Texas Supreme Court has declined to take up a major in vitro fertilization case that could have potentially upended access to the procedure.

The justices allowed a lower court’s opinion to stand, and, for now, sidestepped the question of whether a frozen embryo has the same rights as a living child in post-Dobbs Texas.

The case centers on Gaby and Caroline Antoun, a Denton couple who divorced in 2022. They divided up their assets and settled on a custody agreement for their children. The major point of contention, however, was the frozen embryos the couple created while doing IVF in 2019.

While doing IVF, the couple signed a contract saying that in case of divorce, the embryos would go to Gaby Antoun, the husband. At a hearing on June 29, 2022, a judge upheld that contract and awarded him the embryos.

Two months later, Texas’ near-total abortion ban went into effect, and Caroline Antoun asked the court for a new trial. She pointed to the abortion law, which defines an “unborn child” as “an individual living member of the homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development.”

“Because fertilization has occurred, the embryos are unborn children and thus people as Texas defines them,” her lawyers wrote in a brief. “They are unborn children and should be treated as having all the rights and constitutional protections of children.”

The court disagreed, and Caroline Antoun appealed. The 2nd Court of Appeals in Fort Worth ruled that her arguments were “a classic example of taking a definition out of its legislatively created context and using it in a context that the legislature did not intend.”

“Dobbs held that the United States Constitution does not guarantee a right to an abortion,” the judges wrote. “Dobbs did not determine the rights of cryogenically stored embryos outside the human body before uterine implantation. Dobbs is not law ‘applicable’ to this case, and thus its pronouncement did not justify a new trial.”

Caroline Antoun asked the Texas Supreme Court to consider the case. In an unsigned order without any comment, the court denied her request. Her lawyers released a statement stating their disappointment with the decision.

“While the Court is understandably reticent to take on such a politically hot topic in an election year, the problem will not go away,” the statement read. “We are actively considering all possible avenues for additional review, including requesting certiorari to the United States Supreme Court.”

Her ex-husband, Gaby Antoun, was pleased with court’s decision. “I’m happy I can finally focus on my family and the future of my kids and these embryos.”

He said he doesn’t know what his plans are immediately because of the stress involved with the legal case.

“Tomorrow is a day when I start looking at, everything, including my financial resources and my emotional status," Gaby Antoun said. “And be like, okay, now we can maybe start drawing the plan and seeing how everything is going to fit in my future.”

Historical precedent

Even before the overturn of Roe v. Wade, courts have been called on to wrestle with questions about the legal status of frozen embryos. In the earliest case in 1992, the Tennessee Supreme Court ruled that frozen embryos were somewhere in between person and property, an “interim category that entitles them to special respect because of their potential for human life.”

The Texas courts waded into the issue in 2006, when a man named Randy Roman wanted his frozen embryos destroyed, as was delineated in the contract he and his ex-wife signed before beginning the process. His ex-wife wanted to use the embryos.

A Texas appeals court ruled that it would honor the “emerging majority view that written embryo agreements … are valid and enforceable,” a stance that “best serves the existing public policy of this State and the interests of the parties.”

The Texas Supreme Court also declined to take up that case, so that appeals court ruling is the most recent precedent governing this issue.

Earlier this year, in a high-profile case with significant repercussions, the Alabama Supreme Court ruled that frozen embryos qualify as people under the state’s wrongful death statute. The state’s fertility clinics halted their work, throwing the future of reproductive technology into legal limbo until the legislature stepped in to clarify.

While the details are different, this case was expected to have similar implications in Texas.

“Recognizing ‘personhood’ status for a frozen embryo, as requested by Petitioner, would upend IVF in Texas,” the American Society for Reproductive Medicine wrote in an amicus brief. It would “inject untenable uncertainty into whether and on what terms IVF clinics can continue to operate in Texas.”

Juan Salinas II contributed reporting.

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