Alabama’s ruling that frozen embryos are children could set the stage for a national fetal personhood law. But restricting in vitro fertilization is unpopular among lawmakers and the general public, says Ruth Faden.
On February 16, the Alabama Supreme Court ruled that embryos created through in vitro fertilization should be considered children. Since then, several IVF clinics in Alabama have put services on hold.
The decision leaves clinicians, patients, and lawmakers wondering how the Alabama case could affect nationwide access to reproductive technology and related health care.
Faden is a professor of biomedical ethics in the Bloomberg School of Public Health at Johns Hopkins University and the founder of the Johns Hopkins Berman Institute of Bioethics. Her current research focus includes women’s health and the rights and interest of pregnant people.
Here, she explains the ruling and explores what’s next for IVF in the United States:
What happened in Alabama?
Three couples were pursuing IVF at an Alabama fertility clinic. All three had frozen embryos stored at the clinic that were mistakenly destroyed through an unacceptable breach of protocols. They sued the clinic in a civil proceeding for negligence.
An 1872 Alabama statute that allows parents to recover punitive damages for their child’s death was also invoked. Alabama’s Supreme Court, drawing on a 2018 amendment to the state’s constitution that recognizes the sanctity and rights of unborn children, ruled that embryos qualify as unborn children and therefore the 1872 statute of wrongful death applies.
That’s the legal reasoning. The court didn’t take up questions of ethics or public policy, and didn’t look at the implications of its ruling for people seeking to become parents through IVF. They said that’s for the legislature to address.
What does this mean for people hoping to conceive through IVF?
In Alabama, for the near term, this ruling has brought IVF to a significant halt. Of the seven providers of IVF care, three have already announced they’re suspending or limiting the services they’re making available.
They won’t fertilize any eggs because the legal liability is unclear. If a fertilized embryo is in fact a full legal person, the IVF clinic has to think very differently about what it would mean to generate such embryos. If an embryo has the legal rights of a child, then leaving it frozen for years could make you open to child neglect charges. If you destroy a frozen embryo, you could be charged with manslaughter.
Typical IVF practice is to stimulate hyper-ovulation during a cycle, then harvest and fertilize multiple eggs. After several days of monitoring which fertilized eggs seem to be doing best, one is selected and implanted, while the others are held in reserve. Now there’s confusion about what to do about creating and storing these other embryos. You can’t just harvest and fertilize one egg per cycle and expect a good yield. If you do that and a successful pregnancy doesn’t result, you’re going to have to repeat the cycle month after month at another very high cost.
Because it is expensive, and there’s great variability to what insurers cover, access to IVF already skews wealthy and white. Having to pay for repeated attempts, month after month if doctors can take only one egg per cycle, will only further compromise access for lower income people. Alabama lawmakers are already moving to consider legislation that would protect IVF, because the current situation seems untenable.
Are there broader ramifications for people outside Alabama or for processes other than IVF?
That depends on what happens politically in the multiple states that have strict restrictions on abortion, or that have already or plan to enact constitutional amendments that grant legal personhood from the time of conception forward.
If other states follow the Alabama court, either judicially or legislatively, the IVF enterprise in those states could be similarly severely impacted. It is estimated that 2% of live births in the US annually result from IVF. That’s almost 100,000 live births a year. So it’s a large number of people that would be facing serious challenges to their hopes of becoming biological parents.
From a national standpoint, this Alabama ruling is potentially a building block in the most conservative interpretation of the right-to life-agenda. Eventually if you get more and more states substantiating the legal position that full legal personhood begins at conception—all set in motion by the US Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization—you will have the basis for a national fetal personhood law and then a full abortion law at the federal level.
But as we can see from the Alabama legislature’s rapid response to the court’s ruling, and statements from former President Trump and other Republican politicians, clamping down on IVF is not a popular position. IVF is a way to bring children into the world, it’s pro-natalist.
The people who brought the case in Alabama had all sought out IVF to become pregnant. I would not think they would want to see IVF become unavailable, or much more expensive and burdensome through multiple rounds. For many in the public, it’s an incoherent position to be pro-life and anti-IVF.
IVF brings babies into the world, it doesn’t destroy them. The challenge for pro-life lawmakers will be finding a way to reconcile support for IVF as it is currently practiced, which in many instances results in embryos being destroyed, with the belief that human life begins at the moment an egg is fertilized.
Source: Jamie Smith for Johns Hopkins University
