HOUSTON – The Texas Supreme Court on Friday refused to consider whether frozen embryos are people or property in the eyes of the law, a ruling that could have had dramatic consequences in a state where in vitro fertilization is booming.
“I’m happy that IVF remains the way it is,” said Patrick Wright, the attorney for the winning party in the case, who was sued in the middle of a divorce. However, he warned that the issue is likely to resurface during next year’s legislative session. “This is just the beginning”.
The case was brought by a Dallas-area woman after the U.S. Supreme Court overturned Roe v. Wade in 2022 and was “activated” for a Texas law to take effect that made abortion a felony, punishable by up to life in prison. That law, Caroline Antoun maintains, requires that her three frozen embryos be treated as children in her divorce rather than dividing property.
“What is at stake is my ability to protect my unborn children,” Antoun said in a recent interview, insisting that while anti-abortion groups have supported her, she is not against abortion but rather pro-personhood. and parental rights. “The current law is failing us.”
He could still appeal the case, including to the U.S. Supreme Court. He declined to comment Friday on his plans, but said he believes Texas judges’ decision to reject his lawsuit was motivated by politics and fear.
“It probably reflects a lot of what’s happening in the nation, the ignorance around IVF,” he said. “It’s much more complex than people think. “It’s still something that I think needs to be addressed and I think the legislature needs to be involved in that.”
IVF has been in the news repeatedly over the past week. In Washington, Senate Republicans reiterated their support for IVF and blocked legislation to protect access to it, saying Democrats’ bill was political grandstanding. That vote came a day after the Southern Baptist Convention passed a resolution calling on the government to restrict IVF. The measure, which describes reproductive technology as “dehumanizing,” reflects the Christian right’s view that embryos are human beings who should have legal rights.
While battles over personhood have raged for decades, advocates’ efforts accelerated after Roe fell and states began banning abortion and defining life at the moment of fertilization. In April, an Ohio appeals court overturned a lower court’s decision to equally split a divorcing couple’s embryos, siding with the wife, who had signed an agreement to split the embryos but now wanted to use them and argued that “they have the potential to become children.”
The issue has proven thorny for Republicans in red states who oppose abortion but support IVF, which remains popular among many conservatives. This year they faced backlash when the Alabama Supreme Court ruled that the state’s wrongful death statute applies to embryos. The decision sparked chaos, prompting the temporary closure of most IVF clinics there and jeopardizing procedures until the legislature passed a stopgap measure.
Democrats are criticizing Republicans over IVF ahead of the fall elections. That began with the State of the Union address, when first lady Jill Biden hosted a woman whose embryo transfer was canceled because of the Alabama ruling.
The Texas case centered on an agreement Antoun, 38, signed before beginning IVF in 2019 with her then-husband; In case of divorce, she would get her frozen embryos. The couple had twins in 2020 and separated in 2021. The following year, Antoun sued to keep her three embryos.
“When an egg is fertilized, it is growing. It is not stagnant. He is not dead. That is the beginning of human life. “He’s a person,” Antoun said. “You are going there to create children, to grow your family. Why on earth would you think they are property?
Antoun said she signed the agreement because she was “very desperate” to get pregnant after multiple miscarriages and surgeries: “I thought, ‘Well, we’re not getting divorced. We are married for life.’”
Her ex-husband, Gabriel Antoun, 34, disagrees, insisting the couple were “well-educated adults making planning decisions with our doctor. “We knew what we were doing.”
The case was not about parental rights or personhood, as he sees it.
“Parents are always allowed to make decisions about those embryos or children, whatever they want to call them,” he said. “We were two adults who had a contract. No political twist should be added to this. Otherwise, what was the point of a contract? That must be respected and must be protected by law.”
Trial and appellate courts sided with him, upholding the contract and citing state precedent that embryos are quasi-property. In a 2006 case, Roman v. Roman, the courts upheld a couple’s IVF agreement that, in the event of a divorce, their embryos would be destroyed. The Texas Supreme Court declined to review that case, and the Texas legislature never clarified the IVF personhood issue.
Caroline Antoun’s lawyers argued that Roman precedent was overturned along with Roe and that embryos should no longer be considered property. They cited Texas’ abortion law, which protects “all stages of embryonic and fetal development.”
“Embryos are unborn children and therefore persons as Texas defines them,” the attorneys wrote in a brief, “…and should be treated as if they had all of the constitutional rights and protections of children.”
A state appeals court disagreed, ruling that in attempting to apply the abortion law to IVF, Antoun’s attorneys were “taking a definition out of its legislatively created context.” Caroline Antoun then appealed to the state’s highest court, made up of seven Republican judges.
Texas Right to Life filed a brief in support of its case. The organization’s president, John Seago, said the group is not opposed to IVF. “You can have this recognition of the personality of the embryo and guarantee assisted reproduction.”
But in briefs filed with the court, Gabriel Antoun’s lawyer argued that the issue should be addressed by legislators, since they are in a better position to foresee possible impacts.
“Are we going to claim (the frozen embryos) as dependents? Will they receive visitors? Wright asked Friday. “This is going to go on and on. “The Family Code should be thoroughly reviewed.”
The impact of a ruling in the person’s favor would have been much greater in Texas than in Alabama, since Texas is home to many more IVF clinics. Only California and New York have more, according to the most recent report from the Centers for Disease Control and Prevention.
Barbara Collura, executive director of Resolve: The National Infertility Association, had been following the case. She considered it “extremely dangerous.”
It is unclear what will happen to the Antouns’ frozen embryos. Caroline Antoun’s lawyer said Friday that they would not be immediately released to her ex-husband, but her lawyer said they would.
Michelle Boorstein and Patrick Svitek contributed to this report.
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