Texas High Court Refuses to Decide Whether Embryos Are Persons or Property

HOUSTON — The Texas Supreme Court declined Friday to rule on whether frozen embryos are persons or property in the eyes of the law — a decision that could have had dramatic consequences in a state where fertilization in vitro is booming.

“I’m happy IVF is staying the way it is,” said Patrick Wright, the attorney for the winning party in the case, who was sued in a divorce settlement. He cautioned, however, that the issue would likely resurface during next year’s legislative session. “This is just the beginning.”

The case was brought by a Dallas-area woman after the U.S. Supreme Court’s decision was overturned. Roe v. Wade in 2022 and a Texas law making abortion a crime – punishable by life in prison – has been “triggered” to go into effect. This law, Caroline Antoun claims, requires that her three frozen embryos be treated as children during her divorce instead of property being divided.

“What is at stake is my ability to protect my unborn children,” Antoun said in a recent interview, insisting that while anti-abortion groups have supported her, she is not against abortion but for the personality and rights of parents. “The current law is failing us. »

She could still appeal, including to the U.S. Supreme Court. She declined to comment Friday on her plans, but said she believed Texas judges’ decision to dismiss her lawsuit was motivated by politics and fear.

“It probably reflects a lot of what’s going on in the country, the ignorance around IVF,” she said. “It’s just a lot more complex than people think. I think it’s still an issue that needs to be addressed, and I think the legislature needs to be involved in that.

IVF has been in the news several times over the past week. In Washington, Senate Republicans reiterated their support for IVF and blocked legislation to protect access to it – saying the Democrats’ bill was political grandstanding. The vote came a day after the Southern Baptist Convention approved a resolution calling on the government to restrict IVF. The measure, which calls reproductive technologies “dehumanizing,” reflects the Christian right’s view that embryos are human beings who should have legal rights.

While battles over personhood have raged for decades, their proponents’ efforts have accelerated after Roe deer fell and states began banning abortion and defining life at the time of fertilization. In April, an Ohio appeals court overturned a trial court’s decision to equally share a divorced couple’s embryos, siding with the wife, who had signed an agreement to divide embryos but now wanted to use them and claimed that “they have the potential to become children. »

The issue has proven thorny for red-state Republicans who oppose abortion but support IVF, which remains popular among many conservatives. They faced a backlash this year when the Alabama Supreme Court ruled that the state’s wrongful death law applied to embryos. The decision caused chaos, prompting the temporary closure of most IVF clinics in that country and putting procedures in jeopardy until legislation passed an interim measure.

Democrats are pushing IVF issue among Republicans as fall elections approach. It started with the State of the Union address, when first lady Jill Biden welcomed a woman whose embryo transfer was canceled because of the Alabama ruling.

The Texas case centered on an agreement that Antoun, 38, signed before starting IVF in 2019 with her then-husband; In the event of a divorce, he would recover their frozen embryos. The couple had twins in 2020 and separated in 2021. The following year, Antoun filed a lawsuit to obtain the three embryos.

“When an egg is fertilized, it grows. It’s not stagnant. It’s not dead. This is the beginning of human life. He’s a person,” Antoun said. “You go there to create children, to expand your family. Why on earth would you think they are property? »

Antoun said she signed the agreement because she was “very desperate” to get pregnant after multiple miscarriages and surgeries: “I thought, ‘Well, we’re not going to get a divorce.’ We are married for life.

Her ex-husband, Gabriel Antoun, 34, disagrees, insisting the couple were “well-educated adults making decisions with our doctor.” We knew what we were doing.

The case was not about parental rights or personality, as he sees it.

“Parents are still allowed to make decisions about these embryos or these children, whatever you want to call them,” he said. “We were two adults who had a contract. No political spin should be added to this. Otherwise, what is a contract for? This must be respected and it must be protected by law.

The trial and appeals courts agreed with him, upholding the contract and citing state precedent that embryos are quasi-property. In a case dating from 2006, Roman c. Roman, courts upheld a couple’s IVF agreement that in the event of divorce, their embryos would be destroyed. The Texas Supreme Court declined to review this case, and the Texas legislature never clarified the issue of personhood for IVF.

Caroline Antoun’s lawyers argued that Roman the precedent was overturned with Roe deer and that embryos should no longer be considered property. They cited Texas’ abortion law, which protects “all stages of embryonic and fetal development.”

“Embryos are unborn children and therefore persons as Texas defines them,” the lawyers wrote in a brief, “…and should be treated as entitled to all the constitutional rights and protections of children.” »

A state appeals court disagreed, ruling that by trying to apply abortion law to IVF, Antoun’s lawyers were “taking a definition out of its legislative context.” Caroline Antoun then appealed to the highest court in the state, composed of seven Republican judges.

Texas Right to Life filed a brief in support of its case. The organization’s president, John Seago, said the group does not oppose IVF. “You can have this recognition of the personality of the embryo and ensure assisted procreation. »

But in briefs submitted to the court, Gabriel Antoun’s lawyer argued that the issue should be addressed by the participants, because they are best placed to foresee potential impacts.

“Are we going to pretend [frozen embryos] as dependent? Will they receive a visit? » Wright asked Friday. “This will go on and on. The family code should be considerably revised.”

The impact of a pro-personhood ruling would have been much greater in Texas than in Alabama, since Texas is home to many more IVF clinics. Only California and New York have more, according to the latest report from the Centers for Disease Control and Prevention.

Barbara Collura, executive director of Resolve: The National Infertility Association, was following the case. She considered this “extremely dangerous”.

It’s unclear what will happen to the Antouns’ frozen embryos. Caroline Antoun’s lawyer said Friday that they would not immediately defer to her ex-husband, but her lawyer said they would.

Michelle Boorstein and Patrick Svitek contributed to this report.

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