The recent Alabama supreme court ruling does not prohibit IVF, nor does it do a lot of other things the Left is riled up about.
The recent Alabama supreme court ruling does not prohibit IVF, nor does it do a lot of other things the Left is riled up about.
W hen the Alabama supreme court ruled in LePage v. Center for Reproductive Medicine last month, figures on the left and in the media were swift to form ranks against the “Christian nationalist” decision, which supposedly would halt in vitro fertilization (IVF) in Alabama and create a “reproductive hell.”
Contrary to what the media backlash might suggest, the case taken up by the Alabama court did not actually address IVF. The case asked whether parents could sue a fertility clinic for wrongful death of a child because of the clinic’s negligence in failing to properly secure their embryos. The case concerned an unauthorized individual gaining access to a tray of frozen embryos in the clinic’s unlocked freezer and dropping it on the floor, thereby destroying the embryos. The Alabama supreme court did not determine whether the clinic in question was responsible for the destruction of the embryos but whether the parents could continue their suit against the clinic under the long-standing law that allows parents to sue other entities and individuals over the wrongful death of a child.
In an 8–1 decision, the court ruled that frozen embryos are protected under that law. Justice Jay Mitchell wrote in the ruling, “Unborn children are ‘children’ . . . without exception based on developmental stage, physical location, or any other ancillary characteristics.”
Section 13A-6-1 of the Code of Alabama defines “an unborn child in utero at any stage of development, regardless of viability” as a “person” and “human being” for the purpose of state laws that address murder, manslaughter, criminally negligent homicide, and assault.
This law regards “in utero” embryos as individuals under the law. For example, if a pregnant woman is assaulted, and the attack causes a miscarriage, the culprit can be charged for both the assault on the woman and the death of her child.
What happens, then, if that embryo is outside of the womb? This, not the process of IVF itself, was the particular question taken up by the court. Ultimately, the court determined that extrauterine embryos are protected under the law as are intrauterine embryos.
There is, of course, something jarring about equating embryos in a petri dish to tumbling, rosy, breathing children. But there should also be something jarring about equating embryos — the smallest form of unique and individual persons — to any other collection of cells in a lab. An embryo is as much a member of the human species as an individual at a later stage of development.
It is understandable that parents of frozen embryos would feel grief and anger if those embryos were wrongly destroyed. That embryos are entitled to legal protections should not be a point of great contention.
The Alabama decision, first and foremost, enabled parents to hold fertility clinics accountable over the negligent handling of embryos. (However, the current bill in the Alabama legislature — hastily drafted in response to the widespread backlash against the court decision — would remove such levers of accountability from the hands of IVF patients.)
A secondary outcome of the Alabama case — the one that has been highlighted by most major media outlets — is the potentially chilling effect of the ruling on fertility clinics that offer IVF treatments.
In the process of IVF, eggs are fertilized in a lab to form embryos; these embryos can then be cryogenically frozen and stored. This allows the embryos to be implanted in a woman’s uterus when most likely to “stick,” according to the cycle of her hormonal injections. The more eggs that are retrieved and then fertilized, the more viable embryos will be available for implantation.
As both the number and the resilience of a woman’s eggs decrease over time, a cryogenically stored embryo made from a younger egg has a higher chance of sticking to her uterine lining than an embryo formed from an older egg. Some clinicians will implant several embryos at once and see which ones take. If more than one or two happen to “stick,” the rest may be selectively aborted. Other clinicians will implant one or two at a time, continuing the cycle until one sticks.
In the U.S., there are very few regulations regarding how many embryos are made or how many of those are actually implanted. The major problem that arises from these practices is the sheer number of embryos collected and thus the number that are destroyed or simply left over; some are intentionally destroyed in the womb to make room for another, while others are left over in a freezer, consigned to an uncertain fate. Over 1 million embryos currently sit in U.S. freezers, unlikely ever to be implanted.
IVF is treated quite differently in other Western nations. Switzerland, Italy, New Zealand, Australia, and Germany, to name a few, all have stricter IVF regulations than the U.S. Germany is particularly cautious when it comes to reproductive technology, given the nation’s dark history with eugenics and genetic experimentation. The U.S., which has its own sorry chapter in the history of eugenics, has not drawn lessons from the past in crafting laws surrounding IVF.
For example, in Germany, under the Embryo Protection Act of 1990, the knowing fertilization of more than three eggs in IVF treatment is prohibited. The donation of eggs and sperm to third parties, surrogate motherhood, and most forms of embryonic genetic selection are also banned.
In the U.S., these practices regularly accompany IVF treatments. Gestational surrogacy, wherein a woman’s womb is rented out to another couple’s embryo, is often tied to legal questions regarding parentage, along with human trafficking and “surrogacy farms,” that can have an Orwellian hue. For every surrogacy success story for an affluent couple in a major American city, there is a surrogacy horror story that stays hidden. As a society, we have not confronted the question whether surrogacy amounts to selling persons for their bodies. In the U.S., organ donors face more regulations than potential surrogate mothers.
The selection of embryos based on genetic preference is also common in the U.S. In a process called preimplantation genetic diagnosis (PGD), parents can get information about the genetic makeup of embryos and choose which one(s) they want to implant.
Most European nations have safeguards against PGD use in fertility treatments. Germany generally prohibits PGD but allows the practice within narrow limits, as determined by the Preimplantation Diagnostics Act in 2011. Under the act, an embryo can be discarded only if it carries “high risk,” that is, a situation in which the embryo carries a gene for at least one serious hereditary disease or there is a high probability of stillbirth or miscarriage. But other aspects, such as the sex, cannot be grounds for termination.
It’s important to note that, if the U.S. were to adopt stricter protections for frozen embryos as exemplified by laws in other Western nations, this would not necessitate an IVF ban. Unlike most other states, Louisiana acknowledges the legal rights of embryos — and IVF treatments still continue across the state.
While at least three fertility clinics in Alabama have paused IVF treatments for the time being, as they calibrate their response to the recent ruling, the court’s decision has galvanized those calling for greater scrutiny over the destruction of embryos.
Katie Daniel, the state policy director of SBA Pro-Life, noted that “many of these embryos don’t survive, not because they’re neglected, but because they just don’t” naturally — and that the law recognizes the difference between natural failures and destruction caused by negligence. Under the Alabama court’s decision, fertility clinics would not automatically become responsible for any embryos destroyed by acts of God or by acts made in good faith, despite the narrative pushed by major-media outlets. “I think that’s where so much of the misinformation comes in,” said Daniel. Despite the panic, IVF clinics can still operate in Alabama, and some are carrying on as usual.
For Alabama families in the midst of undergoing IVF treatments, they are undoubtedly in a difficult position. But as the Alabama attorney general’s chief counsel, Katherine Robertson, stated, the office has no intention of “using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers.” Alabama governor Kay Ivey also said she is “working on a solution” with Republican state senate and house members to protect the families currently seeking IVF treatment.
The Alabama supreme court affirmed the humanity of embryos and tossed the question of regulating particular IVF procedures back to the state legislature. It did not ban IVF. Given that IVF has broad, bipartisan public support, this ruling can serve as a start to making the procedure as practiced in the U.S. more humane.