There’s no pro-life crusade against in vitro fertilization.
IVF has always had its pro-life critics. Their concerns are legitimate and consistent with respect for human life from conception, but the pro-life movement has nevertheless always been divided over IVF, and even many of those most skeptical of IVF do not think this is the proper moment to open a new legal or political front against it. A recent court case in Alabama doesn’t change that.
The three couples who brought the Alabama case concerning an in vitro fertilization clinic are not, as anyone casually following the news or hearing of President Biden’s statement might think, pro-life activists hostile to IVF. They wanted to have children via IVF. But a patient wandered into the facility where the clinic stored embryos and dropped several of them. The parents sued the clinic for negligence under the state’s wrongful-death statute. The state supreme court ruled that the embryos fell within the statute.
Its decision is being denounced as a cruel blow to infertile couples, a fanatical equation of babies and frozen embryos, a bitter fruit of the Dobbs decision.
Yet the majority’s reasoning is persuasive. Even the dissent concedes that human embryos and fetuses in the womb fall under the protection of the statute — and had done so well before Dobbs. The main point of contention was whether human beings at those stages of development but outside the womb receive that protection. The dissent argues that they do not receive it unless the legislature passes a law explicitly protecting them. The majority reverses the presumption — judging the embryos protected in the absence of a legislative act to exclude them — as a more sensible reading of the text.
This decision does not make embryos babies, either in reality or in the eyes of the law. Human embryos are not toddlers any more than toddlers are adolescents. What human embryos have in common with infants, toddlers, adolescents, and adults is that they are the offspring of human parents and living individuals of the human species — which is to say that “embryo,” “fetus,” “adult,” and the rest are words for different stages of development in beings of the same type. Given nutrition and a suitable environment and untouched by disease, accident, or violence, those embryonic human beings will by an internally directed process develop to the stage at which they can reason, speak, laugh, and love. The couples who sought redress in the courts have not been deprived of a pet or a motorcycle, but of a child. Even media outlets that have treated Alabama law as a bizarre outrage have implicitly acknowledged the point by referring to the storage facility as a “cryogenic nursery.”
We have allowed an IVF industry to arise that involves the creation and routine, deliberate destruction of human embryos. That industry has become entrenched in our culture. It is hardly questioned. Even many pro-lifers have not given the issue much attention, preferring to focus on the families it helps to create rather than the nascent lives it begins and ends. This survivorship bias results in rightful celebrations of embryos who progress successfully to birth but neglects their brothers and sisters, the plight of close to 1 million human beings stuck on ice awaiting destruction, experimentation, or (in rare cases) adoption.
The Alabama ruling — simply by recognizing what the couples who were using IVF wanted and what injury their family endured — has caused great alarm about the industry’s future in the state.
Building a social consensus to regulate the IVF industry in a way that recognizes nascent human lives in the way they deserve, as more than mere products of manufacture, will be an immense challenge to a pro-life movement that already has its hands full with others. Pro-lifers in politics may reasonably decide to prioritize other ways of defending life, such as prohibiting abortion late in pregnancy.
Some of them may even make the prudential judgment to say that they would not restrict IVF in office. They should certainly say that many families have used IVF to bring great joy into the world, and any families that find their path to having children made harder by this decision deserve our compassion. It would be a mistake, however, for Alabama Republicans to rush through legislation that declares human embryos the equivalent of property and IVF beyond regulation (which is the upshot of the panicky advice from the NRSC and Donald Trump). The families that brought these cases deserve compassion, too. Alabama is within its rights to grant their pleas.