How a divorce could imperil IVF access in Texas

The Texas Supreme Court is considering taking up the question of whether frozen embryos should be treated as people, not property, in a divorce case.

By Eleanor Klibanoff, The Texas Tribune

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.”