The Texas Supreme Court has declined to take up a major in vitro fertilization case that could have potentially upended access to the procedure.
The justices allowed a lower court’s opinion to stand, and, for now, sidestepped the question of whether a frozen embryo has the same rights as a living child in post-Dobbs Texas.
The case centers on Gaby and Caroline Antoun, a Denton couple who divorced in 2022. They divided up their assets and settled on a custody agreement for their children. The major point of contention, however, was the frozen embryos the couple created while doing IVF in 2019.
While doing IVF, the couple signed a contract saying that in case of divorce, the embryos would go to Gaby Antoun, the husband. At a hearing on June 29, 2022, a judge upheld that contract and awarded him the embryos.
Two months later, Texas’ near-total abortion ban went into effect, and Caroline Antoun asked the court for a new trial. She pointed to the abortion law, which defines 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.”
“Because fertilization has occurred, the embryos are unborn children and thus people as Texas defines them,” her lawyers wrote in a brief. “They are unborn children and should be treated as having all the rights and constitutional protections of children.”
The court disagreed, and Caroline Antoun appealed. The 2nd Court of Appeals in Fort Worth ruled that her arguments were “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.”
“Dobbs held that the United States Constitution does not guarantee a right to an abortion,” the judges wrote. “Dobbs did not determine the rights of cryogenically stored embryos outside the human body before uterine implantation. Dobbs is not law ‘applicable’ to this case, and thus its pronouncement did not justify a new trial.”
Caroline Antoun asked the Texas Supreme Court to consider the case. In an unsigned order without any comment, the court denied her request.
See here for the background. We don’t know why SCOTx did what it did, we just know they did it. It’ll have to do. That avoids making things worse for now, but the same forced birth zealots that have us in this position are not stopping there. IVF, and birth control, and a lot of other things, remain under threat as long as they have the power to get laws passed.