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A couple’s fight over frozen embryos could upend IVF access in Texas

A doctor with embryos
Photo: Shutterstock

The Texas Supreme Court is considering taking up a case that could upend IVF access in the state.

A heterosexual Denton couple that’s getting divorced is embroiled in a battle over whether their frozen embryos should be considered possessions or people when deciding who they should go to.

Caroline and Gaby Antoun are fighting over three frozen embryos they created together, the Texas Tribune reported.

Before they began the IVF process, they signed an agreement that Gaby would get the embryos in the event of a divorce. Now, however, Caroline is arguing that new abortion laws in the state should be interpreted to mean embryos are legally people, and as such she feels the couple needs to fight it out through the child custody process.

“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,” wrote Caroline’s lawyers in their petition to the Texas Supreme Court.

Gaby’s lawyer, Patrick Wright, on the other hand, told the Tribune the case is not about abortion.

“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.”

A judge already sided with Gaby in a June 2022 hearing regarding the embryos, but Caroline requested a new trial two months later when Texas’s total abortion ban took effect. Her request was denied, but she appealed, arguing that because the new law defines an unborn child as human “from fertilization until birth, including the entire embryonic and fetal stages of development,” her and her husband’s embryos are considered people under Texas law.

Caroline’s lawyers have even argued that treating embryos as property is akin to slavery, 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.”

The state’s 2nd Court of Appeals also rejected Caroline’s argument, calling it 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.”

The judges ruled, “Dobbs held that the United States Constitution does not guarantee a right to an abortion. 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 appealed again. This time to the state supreme court, which has not announced whether it will take the case.

The case is no doubt part of the predicted “domino effect” stemming from the Alabama Supreme Court’s ruling declaring embryos as legal children.

The court’s February 16 decision created widespread fear that IVF providers could face criminal charges if they mishandled or destroyed an embryo. Discarding unused or abandoned embryos is a routine part of the IVF process, and the court even acknowledged that its ruling would effectively end IVF treatment in Alabama. Several major providers in the state halted IVF treatment in response, leaving LGBTQ+ couples, single people, and those who struggle with fertility issues with dwindling access to the most common method of assisted reproduction.

Sonia Suter, a law professor at the George Washington University, told the Tribune that if the court ruled in Caroline’s favor, it would bring up “unimaginable” questions.

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

Ruling that embryos are people would stop IVF clinics in Texas from being able to freeze them, which would essentially unravel the entire process as it is currently done. The American Society for Reproductive Medicine explained in a brief that it would make IVF “much more burdensome, risky, expensive and less effective” because it would require all embryos to be transferred at once or for only one egg to be fertilized at a time.

As these debates intensify, LGBTQ+ people who want to become parents are terrified, as this demographic disproportionately relies on assisted reproductive technology to have children.

As of now, there are just three states — Missouri, Alabama, and Georgia — with laws in effect that grant personhood rights to fertilized embryos. Arizona enacted a law granting these rights as well, but it is currently blocked. However, a dozen states have introduced legislation this year that would legally declare embryos as people.

Further complicating the matter, many states (like Texas) already have laws regarding reproductive rights, but they don’t explicitly consider IVF. Now, lawmakers are reportedly trying to figure out how and if existing state statutes can be interpreted to apply to IVF.

The national outrage spurred by the Alabama ruling made it clear that Americans on both sides of the aisle (including a significant number who are anti-abortion) overwhelmingly support easy access to IVF and other fertility treatments. This has placed Republicans in a tricky position, as these court decisions directly stem from their successful crusade to overturn Roe v. Wade.

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