The Supreme Court of Texas is deciding whether to hear a case which could have major implications for IVF treatment in the state.
Caroline and Gaby Antoun from Denton, Texas, are divorcing, and disagree about possession of their frozen embryos. The couple underwent IVF treatment in 2019, at which time they signed a contract stating the husband would have posession of the embryos in the case of a divorce. However, Mrs Antoun argues that since the US Supreme Court overturned the decision in Roe v Wade, the embryos must be considered 'children' rather than property, providing her with 'custodial rights'.
Her lawyer stated in a petition to the Supreme Court: '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, recognise and protect the rights of those unborn children and their parents'.
Patrick Wright, representing the husband, argued that the case is not about abortion, saying: 'It's a case where two people got together and were planning for their family, and they entered into an agreement'.
Wright added the US Supreme Court's decision in Dobbs v Jackson Women's Health Organisation which overturned Roe, returned the responsibility around abortion legislation to the states, but the treatment of frozen embryos needs to be addressed by the legislature.
An earlier trial court found in favour of Mr Antoun, and an appeal court judge later affirmed this decision.
If the Supreme Court of Texas accepts the case and finds in favour of Mrs Antoun, it could have major implications for IVF treatment in the state. A recent decision by the Supreme Court of Alabama to consider frozen embryos as children, resulted in some clinics pausing treatment, while the legislature clarified the law to restore access to treatment (see BioNews 1229 and 1230).
The American Society of Reproductive Medicine made a submission to the court, supporting the need for informed consent relating to embryos not imminently required for clinical use, stating: 'These agreements give patients control over the disposition of their embryos and honour patients' choices and autonomy over how they would like to handle their frozen embryos in the future.'
The decision on whether the Supreme Court of Texas will hear the Antoun v Antoun case is still pending.
A similar case was recently heard by Circuit Court Judge Dontae Bugg in Fairfax, Virginia, where a couple disagreed about using embryos which were created during their marriage.
In that case, the wife had undergone chemotherapy treatment leaving her infertile and so the embryos she created with her former husband represent her final chance at conceiving a biological child. The husband does not want the embryos to be used.
Case law governing the treatment of embryos is scarce in Virginia, and a lower court ruled the embryos could be considered property, and therefore divided, based in-part on old law relating to slave ownership.
The husband's lawyer argues that the judge must consider a person's right to procreational autonomy.
Judge Bugg will give his verdict at a later date.
Sources and References
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Why a Texas divorce case could impact IVF care in the state
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ASRM files amicus brief in Texas embryo case
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Caroline Michelle Antoun v. Gaby Elias Antoun Appeal from 367th District Court of Denton County (opinion)
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How a Denton divorce could imperil IVF access in Texas
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Virginia judge to decide whether state law considers embryos as property
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Re: Honeyhline Heidemann v Jason Heidemann
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