DENTON, Texas — The Texas Supreme Court Friday declined to take up a Denton County case that could have upended access to in vitro fertilization treatment across the state.
The justices allowed a lower court’s opinion to stand, sidestepping the question for now of whether a frozen embryo has the same rights as a living child in Texas after the U.S. Supreme Court’s decision overturning Roe v. Wade. Justices did not issue any further explanation about their ruling.
The case revolves around Denton couple Caroline and Gabriel Antoun, who divorced in 2022, their three still-frozen embryos from when they began IVF treatment in 2019, and who gets to determine their fate.
Gabriel Antoun’s attorney, Patrick Wright, called the State Supreme Court’s decision a big win for Texas families and IVF in Texas.
“Mr. Antoun is pleased with the court's decision, which honors the parties' agreement and supports families' decisions regarding IVF. He is thankful that he can now focus on his family,” Wright told WFAA.
Caroline, though, called the decision "an unjust stripping of my parental rights."
“On Friday, the Texas Supreme Court turned a blind eye to the unjust stripping of my parental rights and the violation of my bodily autonomy and reproductive rights," she said. "IVF is intended to create children and grow families, not to commodify preborn humans.”
As WFAA first reported, the couple’s divorce went to trial five days after the U.S. Supreme Court overturned Roe. v. Wade, setting off a chain of events that quickly led to a ban on abortions in Texas.
When the couple began IVF treatment, they signed a contract that gave Gabriel Antoun sole ownership of the embryos.
The divorce judge followed Texas precedent and the contract, ruling the embryos are property and should go to Gabriel. Caroline appealed.
Caroline and her attorneys argued in court that the judge hearing their divorce should take into consideration the U.S. Supreme Court’s decision and Texas’s reaction to the ruling when determining the fate of the divorcing couple’s frozen embryos.
They argued that a state that defines life as beginning at the moment of conception should apply child custody laws – not property laws – to the embryos. But the judge ruled that the Dobbs decision does not apply, so Texas still considers frozen embryos property, not people.
Texas’s Second Court of Appeals denied her appeal writing, “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.”
Caroline then appealed to the Texas Supreme Court.
Well-known groups like Texas Right to Life and the American Society for Reproductive Medicine filed amicus briefs with the state supreme court in the case.
The American Society for Reproductive Medicine and Aspire Fertility Partners filed amicus briefs with the state supreme court, arguing against Caroline’s appeal.
ASRM said Caroline’s position “could impede access to IVF in Texas and also affect the many thousands of Texans who have relied on IVF to establish or grow their families.”
The Justice Foundation and Texas Right to Life, though, filed a brief supporting her, writing that a decision to have a custody hearing for frozen human embryos “does not directly impact the IVF industry.”
In early 2024, Caroline told WFAA she remains a “big fan” of IVF – it is the reason she is the mother to twins. But she said she believes Texas could protect IVF while expanding parental rights.
“We say we care about families in Texas. We say we care about parental rights. The right to choose what’s best for families, but in this case we’re not showing it. And our laws ought to reflect that,” Caroline said. “I do not want to continue having children with this person, but I don’t have the right because they were considered property. That’s not OK.”
The Texas Supreme Court decision in the Denton couple’s case comes after Alabama’s Supreme Court issued a ruling that defined frozen embryos as humans, leading IVF clinics across that state to pause treatment until lawmakers passed legislation protecting the procedure and the governor signed it into law.
The details in the Denton couple’s case were different, but expected to have similar implications in Texas.
(Note: This video was published in May.)