On Friday, June 14, the Texas Supreme Court declined to consider a case that asked the Court to determine whether frozen embryos are persons or property under Texas law.

Background: Antoun v. Antoun

The case, Antoun v. Antoun[1], came before the Texas Supreme Court after a couple’s divorce trial awarded the couple’s three frozen embryos to the husband. The trial court judge relied upon the couple’s signed in vitro fertilization (“IVF”) consent form from their fertility clinic, which specified that in the event of a divorce, the husband would be entitled to the embryos. After the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, the wife filed a motion for reconsideration and new trial due to a change in law. She argued that the embryos must be treated as human beings instead of property and, as such, the court would have had to apply a different standard for determining “custody” instead of disposition.

After the Dobbs decision, Texas’s total abortion ban became enforceable for the first time. The wife argued that Texas’s total abortion ban abrogated a prior Texas case, Roman v. Roman.[2] The Roman case also involved a dissolution of marriage dispute between a husband and wife over the disposition of their three frozen embryos. There, a Texas appeals court determined that embryo disposition agreements entered into by couples before IVF were in line with the public policy of the state and represented a valid and enforceable meeting of the minds. The district court in the Antoun case declined to recognize the new argument and an appeals court affirmed the district court’s decision last July. The wife then petitioned the Texas Supreme Court for review, which the Court denied without comment in its orders list posted last Friday. The wife has not yet indicated whether she will petition the U.S. Supreme Court for certiorari.

What Happens Next

The anti-abortion advocacy group, Texas Right to Life – champions of Texas’s 6-week “bounty hunter” ban – filed an amicus brief before the Texas Supreme Court, urging the Court to hear the case and arguing that “frozen embryos should be treated like other children”. The group is an active lobbyist in Texas and the next legislative session in Texas could see more bills seeking to establish personhood rights for embryos or even bills targeting IVF introduced next session. Texas does not have its legislative sessions in even years, so the Texas legislature has not yet had the opportunity to react to the Alabama Supreme Court’s recent decision impacting IVF.[3]

IVF has broad popular support and groups like Right to Life that oppose IVF may recognize that they are unlikely to be successful in state legislatures. Instead, dissolution of marriage proceedings that involve a question of disposition of frozen embryos could continue to present an opportunity to raise personhood questions before state courts. As these cases involve parties grappling with deeply personal and emotional issues, parties to divorce proceedings may be more motivated to pursue appeals, and, in turn, may make these cases more likely to reach top courts.

Takeaways for IVF Providers and Storage Facilities

One takeaway from this case and other cases that have dealt with personhood issues in divorce proceedings is the impact that contracts between the couples have on courts. Without such agreements, courts have relied upon a balancing of equities, which have tended to favor the party who did not want children. However, before arriving at such a conclusion, courts wade through a wide range of issues – including considering the public policy of the state. And these cases often present as issues of first impression for the courts, so judges are not reined in by precedent. In a state with public policy that recognizes embryos as “unborn children”, a future case could present an opportunity to extend personhood rights to frozen embryos.

Form consent agreements between the facility and the couple may not always be enough. Consider this Maryland appellate court decision from 2021[4] finding fault with a form agreement and declining to treat it as dispositive of the couple’s wishes:

“When analyzing a prior agreement, courts should take particular care to ensure that it manifests the progenitors’ actual preferences. Given the pervasiveness of third-party informed consent agreements, we emphasize that the progenitors—not fertility centers—must expressly and affirmatively designate their own intent. While we do not condemn all form contracts to inconsequence in this context, boilerplate language in third-party form contracts that lack expression or direction from the progenitors will not qualify as an express agreement for this purpose.”

Now may be a good time for IVF clinics to review their consent processes to protect themselves from any fallout that may come from such disputes. At a minimum, facilities should consider including a representation from couples that they have discussed and understand their decision regarding disposition and future rights for each eventuality in patient contracts.

Revisiting consents or patient agreements may be even more important with the LePage case returning to the district court. The Alabama Supreme Court’s decision in the LePage case acknowledged that the district court had not yet been able to consider the IVF facility’s contract with the couple and whether this agreement would foreclose the couples’ ability to pursue a wrongful death action – regardless of whether frozen embryos are “extrauterine children."

ENDNOTES

[1] 23-0727 (TX S. Ct.)

[2] 193 S.W.3d 40 (Tex. App. 2006).

[3] LePage et al., v. The Center for Reproductive Medicine et al. and Burdick-Aysenne et al., v. The Center for Reproductive Medicine et al.

[4] Jocelyn P. v. Joshua P., 250 A.3d 373, 380 (2021).