Why a Texas divorce case could impact IVF care in the state

An acrimonious divorce between a Texas couple fighting over their frozen embryos could end up having an impact on in vitro fertilization care in the entire state, and possibly a replay of the controversial court decision in Alabama that briefly ended IVF access in the state.

Caroline Antoun has argued that life begins when an egg is fertilized and claims the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization -- which overturned Roe v. Wade and left it up to the states to regulate abortion care -- gives her a right to "custody" over their three embryos, despite previously signing over her rights to the embryos to her husband in the event of a divorce.

In August 2022, a trial court judge ruled the embryos should be considered "property" and awarded them to the husband -- Gaby Antoun -- and upheld the agreement between the former couple. That court declined to side with Caroline Antoun's argument that the embryos are living beings.

In August 2023, an appeals court judge affirmed that ruling and declined Caroline Antoun's request to hear an appeal.

The embryos were the key point of disagreement in the couple's divorce, according to court documents.

The arguments

Caroline Antoun is asking the Texas Supreme Court to take up her case and address the "treatment of embryonic tissue during divorce proceedings," arguing the court needs to issue new guidance on the treatment of these disputes since Roe is no longer in effect.

"In the interest of providing the most robust protection to all life, embryos should be treated as children rather than as property during divorce proceedings," Caroline Antoun's petitioner's brief argues.

"While legislative action will undoubtedly be necessary to fill out the framework this Court may provide, the Court is presented the opportunity to reclassify embryos from property to unborn children, and to address in the first instance what rights those unborn children (and their parents) have," the petitioner's brief argues.

Despite acknowledging that an agreement between the couple and their fertility clinic awards the embryos to Gaby Antoun, Caroline Antoun argues that embryos have been designated as property because IVF procedures started after the ruling in Roe v. Wade was issued in 1973. The first live birth from IVF wasn't announced until 1978.

Caroline Antoun also claims she did not know what she was signing and she did not intend to relinquish any future parental rights regarding the embryos. She also says she did not intend for them to be implanted in anyone but herself, according to Caroline Antoun's petitioner's brief.

In responding court filings, Gaby Antoun said the court "properly upheld existing law when it comes to the treatment of embryos." He also argues the post-Roe treatment of embryos is for the legislature to take up.

He also argues the Dobbs decision simply returned the regulation of abortion to the states, but did not find that embryos should be considered people, according to Gaby Antoun's response to the petition for review.

"Texas Legislators have yet to address if frozen embryos should be classified as people instead of property. This is a case that the Court should allow the legislature to have time to enact legislation that applies rather than the Court attempting to create law regarding frozen embryos," according to Gaby Antoun's response.

The Texas Supreme Court has received briefs from Caroline and Gaby Antoun but is still considering whether it will take up the case, according to court records.

Potential fallout

If the state Supreme Court takes up the case and rules in favor of Caroline Antoun, it could be detrimental to IVF treatment in Texas -- months after a similar situation played out in Alabama.

After the Alabama Supreme Court issued a ruling that embryos are children, IVF treatment in the state was suspended at the three largest providers for two weeks until lawmakers passed legislation to restore access.

The American Society for Reproductive Medicine warned, in an amicus brief to the case, that if the court sides with Caroline Antoun, it "could impede access to IVF in Texas and also affect the many thousands of Texans who have relied on IVF to establish or grow their families."

Texas Right to Life, an anti-abortion group, pushed back in legal filings and said a "custody hearing for frozen human embryos does not directly impact the IVF industry."

"Texas Right to Life and its members across the country are opposed to all intentional acts that cause the death of any innocent human life, regardless of their stage of development, location, or whether created naturally or in a laboratory," Texas Right to Life said in an amicus brief.