The Alabama Supreme Court sparked massive backlash earlier this year when it ruled that embryos created through IVF are “extrauterine children” under the law. Fertility clinics across the state immediately suspended fertility treatments, and within weeks the Alabama legislature walked back the ruling's impact, passing a law purporting (more on that another day) to protect access to IVF in the state. You can read our full analysis of the Alabama decision here, in an article published on Law.com.

The Texas Supreme Court was poised to accept a case that would tee up the same question under Texas law. On Friday, however, the Texas Supreme Court sidestepped the issue – for now – by declining to take the appeal.

The case was brought by a Dallas-area woman who argues that her frozen embryos ought to be treated as children, rather than property, in her divorce proceedings. She and her ex-husband created several frozen embryos while undergoing IVF treatments in 2019. During their divorce proceedings, the court awarded the embryos to the husband, based on a contract the couple signed during their IVF journey. A few months later, Dobbs was decided, overturning Roe v. Wade and triggering Texas's multiple near-total abortion bans. Based on the new Texas laws, the wife asked for a new trial on the embryos. 

“Because fertilization has occurred, the embryos are unborn children and thus people as Texas defines them,” her lawyers wrote. “They are unborn children and should be treated as having all the rights and constitutional protections of children," rather than being treated as property in the division of marital assets.

The Second Court of Appeals in Fort Worth rejected her arguments. “Dobbs held that the United States Constitution does not guarantee a right to an abortion,” the judges wrote. “Dobbs did not determine the rights of cryogenically stored embryos outside the human body before uterine implantation."

The wife sought review with the Texas Supreme Court, asking them to accept the case and reverse the Second Court of Appeals' rejection of her arguments. However, the Texas Supreme Court declined to take the case, announcing its decision in an unsigned order without comment, thus preserving the Second Court of Appeals' holding. She may appeal to the United States Supreme Court.

This case is the latest headline-grabber in a series of escalating public debates around the future of IVF in the wake of Dobbs. My colleagues and I predicted these threats to IVF before the Supreme Court's opinion in Dobbs had even been handed down in 2022. (Check out our article here). In less than 2 years since Roe was overturned, we are seeing these hypothetical scenarios play out, beginning with the Alabama Supreme Court's first-of-its-kind decision. 

For example, in recent weeks, IVF was the subject of debate at the Southern Baptist Convention, the largest Protestant denomination in the United States, which voted to condemn the use of IVF, which they argue can end in the destruction of “frozen embryonic human beings.” The particular sticking point appears to be the fact that the IVF process often results in the creation of more embryos than are ultimately transferred to a uterus, sometimes because the embryos' genetic testing results show a chromosomal condition likely to result in miscarriage, or sometimes because the couple's family goals have been achieved. Remaining embryos may be donated to science, donated to another person or couple undergoing fertility treatments, or destroyed. The SBC advocated “to consider adopting frozen embryos in order to rescue those who are eventually to be destroyed.” The resolution also encouraged members “to advocate for the government to restrain actions inconsistent with the dignity and value of every human being.” 

Meanwhile, the Idaho Republican Party's platform expanded their statement on abortion to now oppose elements of IVF: “We oppose all abortion actions which intentionally end an innocent human life, including abortion, the destruction of human embryos, euthanasia, and assisted suicide.”

And of course, just last week, Republicans in the U.S. Senate blocked the Right to IVF Act, introduced by Democratic Sens. Patty Murray of Washington State, Tammy Duckworth of Illinois, and Cory Booker of New Jersey. The Right to IVF Act would have established a federal right to receive and provide IVF treatment and to make IVF treatment more affordable and accessible. Republican Sens. Katie Britt of Alabama and Ted Cruz of Texas have introduced a bill called the IVF Protection Act, which they attempted to pass on the Senate floor through a unanimous consent request that was ultimately blocked. While this law purports to protect IVF, it also may lead to substantial legal uncertainty and ultimately cause clinics to close their doors and fewer people to have access to fertility treatments.

In sum, though the Texas Supreme Court may have avoided the clash over IVF for now, it appears clear that both in Texas and across the nation, the right and ability to access fertility treatments, including IVF, remains under direct threat.