Experience, Compassion, Connection.

I Will Be There For You.

Divorced couple’s frozen embryo battle reaches state’s high court

On Behalf of | Jun 8, 2024 | Divorce

There’s been a lot of renewed discussion and debate lately across the country around when life begins. Although the strongest debates have been around abortion, the issue of in vitro fertilization (IVF) has also come under some renewed scrutiny. In fact, IVF was briefly illegal earlier this month in Alabama as lawmakers and courts weighed the matter.

Here in Texas, in light of this debate over when life begins, a divorced couple is battling again over possession of the embryos they had via IVF while they were married. The outcome of their case could affect how our state sees frozen embryos under the law – not just for couples who are no longer together but for the fate of frozen embryos in Texas.

How the husband ended up with the embryos

When the couple divorced two years ago, the judge determined that the three embryos were property and should be given to the husband since his wife had signed an agreement that he would get them in a divorce. (She has since claimed that she didn’t understand what she was agreeing to.)

Now, in light of the U.S. Supreme Court’s decision in a case that overturned Roe v. Wade and returned abortion law to the states, the mother is renewing her argument that the embryos are human beings and should go to her. She’s petitioning the Texas Supreme Court to decide the matter.

The larger implications of the case

The woman’s brief requesting the high court to take the case says, “In the interest of providing the most robust protection to all life, embryos should be treated as children rather than as property during divorce proceedings.”

Her ex-husband argues that the overturn of Roe v. Wade has nothing to do with the status of frozen embryos or their case. His response to his ex-wife’s legal action notes that the high court “should allow the legislature to have time to enact legislation that applies rather than the Court attempting to create law regarding frozen embryos.”

It remains to be seen whether the Texas Supreme Court takes up this case. If it does, its decision would likely have ramifications for other Texas couples with frozen embryos who divorce. In the meantime, it’s critical for couples who freeze embryos to be aware of what they’re signing regarding what happens to those embryos in various potential situations – including divorce.