Of course there’s a court case that could upend IVF in Texas

Whether it gets to the Supreme Court or not is the key.

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’ new abortion laws require frozen embryos to be treated as people and handled through the child custody process instead.

“Now 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,” 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’t about abortion.

“It’s a case where two people got together and were planning for their family, and they entered into an agreement,” Wright said. “This is a family issue and if — and it’s a big if — the courts are getting involved, they’d be doing essentially the thing that has been complained about for years, which is adding something that’s not there.”

Earlier this year, the Alabama Supreme Court ruled that frozen embryos qualify as people under the state’s 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.

“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.”


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.

A Texas appeals court noted the “emerging majority view that written embryo agreements … are valid and enforceable,” and found that honoring these contracts “best serves the existing public policy of this State and the interests of the parties.”

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.


Caroline Antoun’s 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 new 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.”

Her lawyers also argued that treating frozen embryos as property was a return to the days of slavery, before “the ownership of persons became an issue relegated to history.”

“That 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,” they wrote, later saying, “To treat a class of persons, here embryos, as lesser humans by virtue of an immutable trait, is to repeat the mistakes of our forefathers.”

Gaby Antoun’s 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.

“If they say that you can’t sign these agreements, then we have a problem,” Wright said. “Because 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.”

The 2nd Court of Appeals in Fort Worth agreed, ruling that Caroline Antoun’s 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 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.

See here, here, and here for a bit of background. Gotta say, having the female litigant being the threat to the future of IVF while the male litigant is fighting to keep it as is was a plot twist I didn’t see coming. All that SCOTx has to do is decline to take up the appeal, at which point the existing precedent remains controlling. They could take up the appeal and uphold the existing precedent, perhaps with some modifications, but I’d rather they take the simpler route. For what it’s worth, while SCOTx is indeed all Republican, so I believe is the Second Court of Appeals. For sure, Google confirms for me that the three judges who ruled in the Antoun case are all Republicans. So maybe, just maybe, this isn’t so dire.

On the other hand:

Texas Right to Life, the state’s 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.

“Because 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,” they wrote in an amicus brief.

Whatever may or may not happen with the Supreme Court, this is hardly the last we will hear of this issue.

Related Posts:

This entry was posted in Legal matters and tagged , , , , , , , , , , , , , , . Bookmark the permalink.