Texas Supreme Court Considers Taking Up Question of Whether Frozen Embryos Are People

The Texas Supreme Court is considering taking up the question of whether frozen embryos should be treated as people, not property, in a divorce case.

But Caroline Antoun, the wife, argues that Texas’ new abortion laws require frozen embryos to be treated as people and handled through the child custody process instead.

In the earliest case, the Tennessee Supreme Court ruled in 1992 that frozen embryos were neither persons nor property, but instead were in an “interim category that entitles them to special respect because of their potential for human life.” Without a written contract in place, the court sided with the ex-husband, who wanted the embryos destroyed.

The Antouns married in 2014 and began IVF five years later. They implanted three embryos, resulting in two children and one miscarriage, and three remained frozen. The couple separated in 2021 and divorced in 2022. While they successfully mediated the other aspects of their divorce, including custody of their two children, they ended up going to court over the frozen embryos..

“If they say that you can’t sign these agreements, then we have a problem,” Wright said. “Because now you’re saying that people can’t validly contract to create their families, in their own way, with their own choices, and now the state is imposing on decisions that families are making.” that Caroline Antoun’s 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.

Without the ability to freeze the embryos, fertility clinics would have to either transfer all the embryos at once, or fertilize only one egg at a time, ASRM wrote in its brief. Either option “would make IVF much more burdensome, risky, expensive and less effective,” the group wrote.

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