‘We don’t know where we stand’: IVF in Texas is on shaky ground

From KERA News:

By staying silent on a Denton couple’s divorce dispute over how to decide who should own the embryos they created via in vitro fertilization, the Texas Supreme Court left a lower court’s decision in place: frozen embryos aren’t legally children.

Anti-abortion groups say it doesn’t matter what side of the uterine wall an embryo is on — it’s still a person. That’s the same conclusion the Alabama Supreme Court came to in its February ruling that drew some criticism and concern over IVF access in that state.

Texas laws on IVF and embryonic personhood still aren’t cut and dry. The non-ruling from state justices has revived the legal and moral debate around defining personhood in a post-Dobbs state.

According to federal data released this year, Texas was among the top 10 states with the most children born using assisted reproductive technology in 2021. Legal experts like appellate lawyer Chad Ruback say it will be up to state lawmakers, who convene in January, to further clarify the rules around one of the most common fertility procedures — if they do so at all.

“That’s up in the air,” Ruback said. “Where we stand is we don’t know where we stand.”

Where the law stands

Gabriel and Caroline Antoun began IVF treatment in 2019. The procedure led to the birth of their twin son and daughter, and three embryos are currently frozen at the Dallas Fertility Center. The couple signed a contract with the clinic that states in case of their divorce, the embryos would belong to Gabriel Antoun.

When the Antouns began the divorce process, Caroline Antoun testified she hadn’t fully understood what she was signing and believed the embryos were best kept with her as she didn’t want to relinquish parental rights. A trial court sided with her ex-husband in honoring the original contract.

The mother appealed the decision after the U.S. Supreme Court overturned Roe v. Wade. She argued Texas law’s new definition of an unborn child — a human being “from fertilization until birth, including the entire embryonic and fetal stages of development” — should apply to the embryos, making them children and subjecting them to the child custody process.

Ruback said a ruling in Caroline Antoun’s favor would have made the IVF process across the state much more complicated. For example, courts might have to decide visitation rights for couples and embryos.

And like in Alabama, the negligent handling of embryos could open fertility clinics up to wrongful death lawsuits.

“Texas law is not yet ready, I believe, for a simple statute that says life always begins at conception without a bunch of additional statutes or related statutes being either tweaked or interpreted by a court to address that change,” he said.

A Fort Worth appeals court ruled a frozen embryo outside the womb cannot be classified as an unborn child. That argument, a justice wrote, is “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.”

Nathan Seltzer with The Justice Foundation, an anti-abortion, public-interest litigation firm in San Antonio, said the decision shows a disconnect in how embryos are given rights in the written law versus in the courts.

“It’s inconsistent for Texas law to treat a child outside the womb differently from a child inside the womb who’s effectively the same age,” he said.

After three fertility clinics stopped offering IVF services after the Alabama Supreme Court’s ruling, state lawmakers there quickly moved to implement a law that protects clinics from criminal and civil liability if embryos are damaged or destroyed. At least one center has said the law still doesn’t put them at ease.

IVF access was never at risk in Texas, Seltzer said, because the law states if embryos are destroyed in a lawful medical procedure with the required consent, anyone involved in the assisted fertility process is protected from criminal prosecution and civil wrongful death claims.

Beyond this case, groups like the Justice Foundation and Texas Right to Life have pushed for stricter IVF regulation. That includes finding ways to fertilize fewer eggs at a time and holding clinics responsible for negligence that leads to embryo damage or destruction.

“No industry wants more regulation,” he said. “I don’t think that they invite regulation very often. But when we’re talking about human beings and how they’re going to be treated and what’s going to happen to them, then we need the law to step in.”

The American Society for Reproductive Medicine supported Gabriel Antoun in its amicus brief. The group, which supports abortion rights, argued if an embryo is treated as a living person in Texas, it would cast doubt on the validity of IVF contracts, even if all parties consent.

Additionally, ASRM wrote, fertility clinics may shy away from the risk of costly litigation over those contracts or how they’re handling embryos. It also raises issues of practicality — could clinics be required to preserve frozen embryos indefinitely to avoid destroying them? Could doctors only fertilize one egg at a time? Or be forced to implant all viable embryos at once?

The Texas Supreme Court didn’t address these hypotheticals in an opinion rejecting the Antoun case. The public can only speculate why, Ruback said.

“(The court’s) strong preference whenever possible is to let the legislature do its job — to pass statutes — and then have the Texas Supreme Court opine on interpreting those statutes, determining whether they’re constitutional, for example,” he said.

Looking to the Legislature

It’s uncertain whether or how state lawmakers will address the legal issues the Antoun case presents, said Dallas family lawyer Hunter Lewis. No such laws have passed in the 18 years since the Texas Supreme Court last declined to hear an embryo ownership case — Roman v. Roman in 2006.

“For most decisions that come down, if there is something that people feel strongly against, this is their time to stand up and tell their representative, ‘I’ve seen this, this impacts me. Let’s make this a forefront issue,’” Lewis said. “And so, that’s when we really see things get traction.”

Plus, lawmakers just have to agree on legislation to pass. Some have tried to tackle the IVF issue in recent years to no avail.

State Rep. Steve Toth, R-The Woodlands, filed a bill in 2021 that would require a court to resolve a dispute over an unimplanted human embryo “in accordance with the best interests of the embryo,” a provision similar to the language Caroline Antoun’s lawyers used to make her case that embryos should be subject to the child custody process. That bill died in committee.

That same year, State Rep. Greg Bonnen, R-Friendswood, proposed a constitutional amendment that would define an embryo as a citizen and guarantee them human rights from fertilization — but stipulating the law could not be used to prohibit IVF treatments. The proposal died in committee.

Representatives for Toth and Bonnen did not respond to requests for comment on any plans to file bills on these issues next year.

State Rep. Mihaela Plesa, D-Plano, recently encouraged the public to sign a petition asking lawmakers to protect IVF. Plesa, who is pursuing fertility treatments herself, filed a bill last legislative session — which ultimately died in committee — to allow physicians to provide abortions for people age 35 and older, people with a high-risk condition or if those who become pregnant through IVF.

“One hundred and forty days isn’t a long time to get legislation done,” she told KERA News in February. “And so, this needs to be a priority of the legislature to make sure that we codify protections for reproductive freedom.”

Federal lawmakers have also rushed to find ways to protect IVF after the Alabama court ruling. Sen. Ted Cruz, R-Texas, and Sen. Katie Britt, R-Alabama, filed a bill last month that would make states ineligible for Medicaid funding if they banned IVF.

Senate Democrats blocked it because they said the legislation didn’t go far enough in protecting the procedure and left legal loopholes. Senate Republicans then blocked a Democrat-led bill to make IVF a federal right.

Despite efforts from both sides of the aisle, Lewis said he doubts IVF will be a uniting force during next year’s legislative session and the months leading up to it. The Antoun decision is sufficiently clear in not expanding the state’s definition of a child, he said, whether it’s right or wrong.

“Having a family is an amazing, amazing thing, and having this type of clarity is really important, as is the right to contract,” he said. “And so, if there is a concern that your belief system doesn’t align with what this is, make your voice heard.”

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