HOUSTON — The Texas Supreme Court on Friday declined 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 stays the way it is,” said Patrick Wright, the attorney for the prevailing party in the case, who was sued amid a divorce. Yet he cautioned that the issue is likely to resurface during next year’s legislative session. “This is just the start.”
The case was brought by a Dallas-area woman after the U.S. Supreme Court overturned Roe v. Wade in 2022 and a Texas law making abortion a felony — punishable by up to life in prison — was “triggered” to take effect. That law, Caroline Antoun argues, requires her three frozen embryos to be treated as children in her divorce instead of property to be divided.
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“What’s at stake is my ability to protect my unborn children,” Antoun said in a recent interview, insisting that while antiabortion groups have supported her, she’s not against abortion but for personhood and parents’ rights. “The current law is failing us.”
She could still appeal the case, including to the U.S. Supreme Court. She declined to comment Friday about her plans but said she believes the Texas judges’ decision to decline her lawsuit was motivated by politics and fear.
“It probably reflects a lot of what’s going on in the nation, the ignorance around IVF,” she said. “It’s just much more complex than people are aware of. It’s still something I think needs to be addressed, and I do think the legislature needs to be involved in that.”
IVF has repeatedly been in the news in the past week. In Washington, Senate Republicans both 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 approved a resolution calling for the government to restrain IVF. The measure, which described the reproductive technology as “dehumanizing,” reflects the Christian right’s view that embryos are human beings that should have legal rights.
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While battles over personhood have raged for decades, proponents’ efforts gained speed after Roe fell and states began banning abortion and defining life at fertilization. In April, an Ohio appellate court reversed a trial court’s decision to evenly split a divorced couple’s embryos between them, siding with the wife, who had signed an agreement to divide the embryos but now wanted to use them and argued “they have the potential to develop into children.”
The issue has proved thorny for red-state Republicans who oppose abortion but support IVF, which remains popular among many conservatives. They faced a backlash this year when Alabama’s Supreme Court ruled that the state’s wrongful death statute applies to embryos. The decision stirred chaos, prompting the temporary closure of most IVF clinics there and throwing procedures into jeopardy until the legislature passed a stopgap measure.
Democrats are hammering Republicans on 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 that Antoun, 38, signed before beginning IVF in 2019 with her then-husband; in case of divorce, he would get their frozen embryos. The couple had twins in 2020 and separated in 2021. The following year, Antoun sued to get the three embryos.
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“When an egg is fertilized, it is growing. It’s not stagnant. It’s not dead. That’s the beginning of human life. It’s a person,” Antoun said. “You’re going there to create children, to grow your family. Why on earth would you think they’re property?”
Antoun said she signed the agreement because she was “very desperate” to become pregnant after multiple miscarriages and surgeries: “I thought, ‘Well, we’re not getting divorced. We’re 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 wasn’t about parents’ rights or personhood, as he sees it.
“Parents are always allowed to make decisions about those embryos or child, whatever you want to call them,” he said. “We were two adults who had a contract. No political spin should be added to that. Otherwise, what was the point of a contract? That should be respected, and that should be protected by the law.”
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Trial and appeals courts sided with him, upholding the contract and citing state precedent that embryos are quasi-property. In a 2006 case, Roman v. Roman, courts upheld a couple’s IVF agreement that in case of divorce, their embryos would be destroyed. The Texas Supreme Court declined to review that case, and the Texas legislature never clarified the personhood issue for IVF.
Caroline Antoun’s attorneys argued that the Roman precedent was overturned along with Roe and that embryos should no longer be considered property. They cited Texas’s abortion law, which protects the “entire embryonic and fetal stages of development.”
“Embryos are unborn children and thus people as Texas defines them,” the lawyers wrote in a brief, “… and should be treated as having all the rights and constitutional protections of children.”
A state appeals court disagreed, ruling that in trying to apply 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, composed of seven Republican justices.
Texas Right to Life filed a brief in support of her case. The organization’s president, John Seago, said the group doesn’t oppose IVF. “You can have this recognition of the personhood of the embryo and ensure assisted reproduction.”
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But in briefs submitted to the court, Gabriel Antoun’s attorney contended the matter needs to be addressed by lawmakers since they are in a better position to provide for potential impacts.
“Are we going to claim [frozen embryos] as dependents? Are they going to get visitation?” Wright asked Friday. “It’s going to go on and on. The family code would have to be significantly revised.”
The impact of a pro-personhood ruling would have been far greater in Texas than it was in Alabama since Texas is home to many more IVF clinics. Only California and New York have more, according to the most recent Centers for Disease Control and Prevention report.
Barbara Collura, chief executive of Resolve: The National Infertility Association, had been tracking the case. She considered it “extremely dangerous.”
It isn’t clear what will happen to the Antouns’ frozen embryos. Caroline Antoun’s attorney said Friday that they would not be immediately turned over to her ex-husband, but his attorney said they would.
Michelle Boorstein and Patrick Svitek contributed to this report.
