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The Frontier of Legal Personhood

Advocacy surrounding any issue, whether it be political, legal, or philosophical in nature, has the unfortunate tendency to lose sight of the fact that it is everyday people with everyday lives who are often the most profoundly affected. Indeed, the focus on the question of when human life begins and who should pay the price of that decision has been on the pitched battles over the legal precedent of Roe v. Wade, ballot measures, and legislative brawls. What follows is simply one of those forgotten stories.

Caroline Antoun is a resident of Denton, Texas who is currently engaged in a heart-wrenching legal battle to secure the right to the future of her children who have yet to be born. She shared her story with me while deftly juggling the needs of her highly-energetic two-year-old son, who was home sick for the day. Caroline met her now ex-husband while the two were working in Saudi Arabia, and their dreams of a large family were constantly frustrated by fertility issues. Caroline struggled both to conceive and to carry children to term, a difficulty that caused severe distress and desperation for the couple. After several medical interventions, including the surgical removal of uterine fibroids and polyps, Caroline decided, with great reluctance, to try in-vitro fertilization (IVF).

Caroline described for me her initial hesitation to seek IVF, a procedure in which eggs from the mother are extracted and fertilized externally. She cited the fear of the potential health effects, the prohibitive costs of the procedure, a Christian upbringing which made her view the procedure with some suspicion, a conflict with her more naturalistic worldview, and a distrust that fertility doctors would recommend the procedure too readily in lieu of less costly, less invasive procedures. Caroline took great pride in her more “crunchy” lifestyle and felt that the procedure conflicted with everything she believed in. Seeking the procedure also came with a great deal of guilt and shame, feeling to Caroline like a tacit admission of a failure on her part to conceive. Choosing IVF also cost Caroline friendships, as the controversial procedure tends to arouse intense opposition. Ultimately, however, her reluctance was overcome through a combination of the traumatic experience of a subsequent miscarriage and additional pressure from her then-husband. Caroline describes having felt like a “broody chicken,” an expression describing a hen so desperate for motherhood she will spend the rest of her life sitting on unfertilized eggs vainly waiting on them to hatch. It was a feeling I deeply appreciated, being the grandson of a former chicken farmer.

The procedure produced several viable embryos, one of which was miscarried, and two of which produced twins – Talia and Theo, born in August of 2020 – with three frozen for future use. The IVF process was no easy task. The pregnancy itself was harrowing, demanding bed rest for its final 13 weeks. Caroline fought hard to prevent a premature birth, and her efforts were rewarded with two healthy children. The fertility clinic provided a 12-page contract which, among other things, outlined the legal status of the fertilized embryos and provisions for what would happen if either parent dies or divorce occurs. Caroline was heavily pressured by her then-husband to allow him the legal right to the embryos in the case of divorce, which she agreed to, thinking that the possibility was unlikely enough to not be worth considering. Unfortunately, their marriage did deteriorate shortly after the birth of Caroline’s two children, due to her husband showing signs of abusive behavior. He resisted any attempted intervention in his behavior, which posed a threat to both Caroline and her young children. His refusal to improve his marriage was motivated in part by his knowledge that Caroline’s frozen embryos would be legally his in the event of a divorce. He expressed the sentiment that he “didn’t need” Caroline, and that he could always find another woman to carry those children to term.

Caroline filed for divorce on June 30th, 2021. The final trial date was set for June 29th, 2022. Five days before the trial was to begin, on June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women's Health Organization. Texas is a “trigger law” state, meaning that the overturning of Roe v. Wade caused an automatic, fundamental shift in the way the law treats embryos. Within a month of when Dobbs was decided, an embryo became an “unborn child” under Texas law from the moment of fertilization, which is afforded all the rights and privileges of any other human being. Like most trigger laws, this was intended to be retrospective, rendering even children conceived before the law changed their due rights. The legal principle in this regard is not that the law itself is retroactive, but that the existing laws protecting unborn life that pre-exist Roe (in the case of Texas, existing as far back as 1851) are still in effect, merely held in abeyance until such time as they become enforceable if and when Roe is overturned. This, indeed, is what Caroline’s lawyer is arguing on appeal, taking special note of the recently-passed Human Life Protection Act of 2021, which explicitly provides that “the legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade […] that prohibit and criminalize abortion unless the mother's life is in danger.

This monumental shift in the legal status of unborn children should have directly affected the case, and indeed, Caroline moved through her lawyer that the trial should be set aside in consideration of this new legal framework. The court had already ruled that the embryos would be treated as property and their fate would be decided accordingly at trial. However, this ruling had come about prior to Dobbs, and the post-Dobbs legal reality altered the case from one of an issue of distributing marital property to a custody dispute. Caroline argued that due process demanded that the issue should be reconsidered and reargued accordingly. The court refused, and the final divorce decree included the hastily-scrawled ruling that the embryos be awarded to Caroline’s ex-husband per the terms of their contract, effectively terminating Caroline’s parental right to the future children without a proper hearing.

Caroline is currently appealing before the Fort Worth Court of Appeals, arguing along similar lines as she did at trial. Because the embryos in question are human beings rather than property, their lives cannot be governed by the principles of contract law and the four corners of the contract signed by their parents. Their actual lives – and Caroline’s rights as a parent – must be considered. Despite having not been born, these are human lives with human futures if all goes as planned. If born, they will be raised and cared for. If raised and cared for, they will become adults whose lives will reflect their upbringing. This cannot be a case of vindicating the property rights of a divorced spouse, as if they were a piece of real estate or a shared vehicle. Additionally, Caroline’s rights over her own reproductive destiny and those of her future children must be considered. Caroline did not enter into an agreement to engage in the physically demanding, expensive, invasive process of in-vitro fertilization over and above her own personal compunctions with the understanding that her husband would treat the resulting children instrumentally, as if she or whichever woman he can find is merely a means to the end of carrying forward his own genes.

It is important to emphasize that Caroline is not an ideologue. She has no agenda, she has no decided opinions on political issues surrounding Roe v. Wade, does not consider herself either “pro-life” or “pro-choice,” and was not selected as a test case with the hopes of fighting a political battle in the Supreme Court. Her stakes in this fight are intensely personal. In losing the embryos, Caroline is losing literal pieces of herself: eggs harvested from her own body. Moreover, she is a mother fighting in the interest of her future children, who have been alienated from her as property because of a bizarre legal mechanism. Her argument is neither that she should be awarded automatic custody nor that the father should have no right to the children, but rather that the interests of the embryos deserve to be considered, represented, and discussed, just as those of any other child. What keeps Caroline going, in her own words, is the knowledge that these children should one day know that, win or lose, their mother did everything she could to fight on their behalf.

Worth noting too is the deafening silence of pro-life voices in Caroline’s favor. Caroline discussed with me her complete inability to secure either material or moral support from pro-life groups in her area, which turn their noses up at anything to do with IVF. This is an embarrassing and revealing moral failure from a movement that has been too quick to declare victory after Dobbs, and is too often concerned with narrow preoccupations rooted more in cultural respectability than anything related to a politics of life. If anything, Caroline’s case is a clear object lesson in the unavoidable fact that Dobbs was less a victory than it was the start of a whole new phase of political struggle. The post-Roe reality is a legal frontier in a system that is almost entirely unprepared to deal with the rehumanization of an entire class of people. Ultimately, ordinary people like Caroline are the ones who will pay the cost of the failure to reckon with this fact, and a genuine respect for human dignity should not be waylaid by pettifogging about how those lives came into being.

Caroline’s words at the close of our conversation are worth quoting in their entirety. “I think it takes a village to raise a child, and it takes a village to protect a child. I’m asking for the community to be a community and stop being so individualistic. Come alongside me. My story is unique to me, but I’m not the last person to be in this situation. We have an opportunity to let this end here. We can’t just send thoughts and well wishes and prayers. Those aren’t bad things, but we know how our society works. To create laws and change laws takes resources; I’m appealing to everybody to come together to do the right thing.” Caroline’s words strike at the heart of what the politics of life is all about. It’s not all about Supreme Court precedents or which party has control of Congress, but about our collective responsibility to be humane to one another. Caroline is, at great personal cost, fighting a battle that any one of us may not have to fight only because of her efforts, and we do have a responsibility to come together as a community and support this effort.

Those willing to support Caroline’s legal fight can donate to her kickstarter campaign, which can be found here.


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Disclaimer: The views presented in the Rehumanize Blog do not necessarily represent the views of all members, contributors, or donors. We exist to present a forum for discussion within the Consistent Life Ethic, to promote discourse and present an opportunity for peer review and dialogue.

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