Will Texas Follow Alabama’s Rocky Path For IVF And Embryos?
The Supreme Court of Texas is taking on a key case to decide whether embryos are full human people under Texas state law.
On its face, the Dobbs opinion may have been just about abortion. But in addition to the initial shock wave, it’s becoming clear that the ramifications of Dobbs keep reverberating. And those fights spill into other areas too — like embryo disputes throughout the country.
Post-Dobbs, Alabama passed a constitutional amendment affirming that “it is the public policy of [Alabama] to recognize the sanctity of unborn life and the rights of unborn children, including the right to life.” In February 2024, the Alabama Supreme Court had a chance to apply that provision, and ruled that embryos are “unborn children” for the purposes of wrongful death torts. That meant that a fertility clinic was liable for wrongful death when one of its rando patients opened a cryopreservation tank, removed embryos, and dropped them to the ground, destroying them. That was the law in Alabama for a matter of weeks. But following intense public backlash, the Alabama Legislature quickly passed a law granting blanket immunity to IVF clinics and related professionals.
Now, a separate embryo dispute is up before the Supreme Court of Texas. But this wolf comes as a wolf. The parties are explicitly debating whether embryos in Texas, post-Dobbs, should be recognized by the state as unborn children.
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The Case
In Antoun v. Antoun, a husband and wife went through in vitro fertilization in 2019 in order to conceive. They were successful, having given birth twice by the time the wife filed for divorce in 2021. At issue in the divorce were three remaining cryopreserved embryos.
When starting fertility treatments, the husband and wife each signed a consent form regarding their cryopreservation of embryos, in which they selected the disposition of any remaining embryos in situations such as death or divorce. The agreement provided that “in the event of divorce, husband and wife direct the storage facility to place the frozen embryos at the disposal of the….” followed by the word “husband” circled on the form and initialed by both the husband and wife. In June 2022, a trial court followed the terms of the consent form and ordered that the embryos be awarded to the husband.
The following month, on July 24, 2022, the U.S. Supreme Court issued its Dobbs decision. The wife filed for reconsideration of the judgment, arguing that the Texas Human Life Protection Act — which was triggered by the Dobbs decision and sprung into effect on August 26, 2022 — effectively changed state law applicable to the embryos in dispute. The Texas Health and Safety Code Section 170A.001(5) now defined an “unborn child” as “an individual living member of the homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development.”
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Still, the appellate court sided with the trial court, finding no abuse of discretion. And further, to the relief of all those on the side of the embryos-are-not-children position, found that the wife’s argument was 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.” Noting that the definition of “unborn child” was specifically found in the section of the Texas Health and Safety Code entitled “Performance of Abortion,” and was referred to in the context of a pregnancy, and had nothing to do with the context of a cryopreserved embryo. Oh.
Is A Clinic Consent Form A Contract Between Husband And Wife?
Among the wife’s challenges before the appellate court was the question of “whether there was ‘privity of contract’” between the husband and the wife — who were married at the time — for the purposes of making the contractual agreement bind not just the IVF clinic, but also their divorce terms. Some courts have found this argument persuasive. After all, the consent form is prepared by the IVF clinic for the IVF clinic’s protection. It is generally not designed as a contract between two patients of the medical facility. Nonetheless, relying on the persuasive authority of Roman v. Roman, where a Texas appellate court previously found that an IVF clinic consent form met the requirements of an enforceable contract between two signing parties, the appellate court rejected the wife’s argument.
A Storm Brewing
In a concurring opinion to the appellate decision, Justice Kerr noted “that it has been 17 years since our sister court in Houston [in Roman] ‘anticipat[ed] that the issue [of how to deal with frozen embryos] will ultimately be resolved by the Texas Legislature’… to date the legislature has not taken up this task, but I believe that it inevitably must.” The justice continued, not hiding her personal feelings on the matter. “[F]rozen or not, embryos are human life — life that our law now protects from being aborted when growing within a mother’s body. But is that life also worthy of some protection when it exists instead in suspended animation, in limbo? Ought that suspended life be treated as something more than the subject of lifeless property and contract law?”
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Of course, a number of amicus briefs have been filed with the Supreme Court of Texas arguing starkly opposing viewpoints to that of Kerr. In the American Society of Reproductive Medicine (ASRM)’s filing, it explains that embryos are not persons, nor do they fall under the legal definitions of a person under Texas law. For example, the Texas Right to Life Act defines “individual” as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” However, ASRM explains that a frozen embryo is a microscopic group of cells located outside a uterus, and does not fall within a “stage of gestation from fertilization until birth.” Moreover, “a frozen embryo cannot grow into a living person unless it survives the thawing process, is transferred to a uterus, implants there, develops a gestational sac, embryonic pole, and fetal cardiac activity, and then advances past the point of viability. Nothing in Texas law supports that the legislature intended to recognize a frozen embryo as a legal ‘person.’”
Separately, the ASRM amicus brief describes how granting “personhood” status to a frozen embryo would upend IVF treatment in Texas. “The increased costs and liability risks would mean that fertility clinics in the State may no longer allow patients to freeze their embryos, despite that being the safest and most effective way to pursue IVF. And by disallowing parties from voluntarily contracting about the future handling of their frozen embryos, the Court would be contravening Texas’s public policy of protecting and promoting IVF and respecting patients’ choice and autonomy.”
We may find out where the Supreme Court of Texas lands on these arguments sooner rather than later. The Antoun case will force the Texas Supreme Court to stake out their doctrinal position on whether an embryo is defined as an unborn child. And depending on the result, we could be facing a redux of the Alabama controversy from earlier this year.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.
