How a Denton divorce could imperil IVF access in Texas

DENTON, Texas - 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."

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 "interim category that entitles them to special respect because of their potential for human life." Without a written contract in place, the court sided with the ex-husband, who wanted the embryos destroyed.

"The court suggests that the right not to procreate, because you cannot not be a genetic parent once it happens, is irrevocable," said Sonia Suter, a law professor at the George Washington University. "Whereas the ex-wife could theoretically be a genetic parent, so we haven’t precluded her right to be a parent."

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.

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’s 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’ near-total abortion ban went into effect. 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’t granted, she appealed.

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.

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 "unimaginable" questions about the realities of IVF, Suter said.

"Even if both parties agree that they want the embryos disposed, if they’re a person, can you do that?" she said. "Can you kill your kids? Can you leave them in the freezer, or donate them to research?"

Such a ruling would also throw into question any contracts fertility clinics have their clients sign, making cryopreservation "legally, financially and logistically untenable," 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 "would make IVF much more burdensome, risky, expensive and less effective," 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.

"Whatever one’s views are about when life begins, which are deeply held views, I think it’s pretty fair to say that our current legal system as we have it just can’t sustain this kind of change without a complete rethinking of how it works," Ryan said.

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.

In their briefs, Gaby Antoun’s lawyers argue this is a question best left to the Legislature, an idea Ryan echoes.

"The cases before the courts are so dependent on specific facts of the case, even if the implications extend far beyond it," she said. "Whereas legislatures … 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."

After the Alabama ruling, Texas Gov. Greg Abbott signaled his support for families that get pregnant through IVF, and said he had "no doubt" the Legislature would take steps to ensure that remained an option.

"Texas is a pro-life state, and we want to do everything possible that we can to maintain Texas being a pro-life state," Abbott told CNN at the time. "But at the very same time … 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."

IVF gets "exceptionalized," 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 — but many legal experts say this temporary legislation didn’t address the significant questions that remain.

"This 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," Ryan said. "Going 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."

We’ve got big things in store for you at The Texas Tribune Festival, happening Sept. 5–7 in downtown Austin. Join us for three days of big, bold conversations about politics, public policy and the day’s news.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/05/13/texas-supreme-court-frozen-embryos-ivf/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.