When I sent my mom an article about a recent Alabama Supreme Court decision that frozen embryos qualified as people under the law, her response caught me off guard:
“So if I’d saved my five embryos I could have used them as dependents on my taxes?”
As a child of in-vitro fertilization (IVF), this knee-jerk reaction to the ruling made me giggle, and although my response – “in Alabama I guess” – sort of summed up the decision, it raised very real questions about a different kind of right to life: my own.
Pro-life activists’ opposition to IVF isn’t new. The procedure has been opposed since its conception, in part because the possibility of leftover embryos is always likely.
LePage et. al. v. Center for Reproductive Medicine, the case at the center of unfolding chaos in Alabama, revolves around cryopreserved embryos that were accidentally destroyed. A patient at the clinic gained access to the cryo-preservation tanks, opening one and burning themselves due to the sub-freezing temperatures. The embryos were dropped, and subsequently destroyed.
Several plaintiff couples are suing both the hospital and fertility clinic alleging wantonness and negligence, and in two instances, the wrongful death of a child.
Although there are three other cases, LePage is garnering the most coverage because the plaintiffs seek to apply the Wrongful Death of a Minor Act to their loss.
The opinion, published Feb. 16, sought to decide “whether the Act contains an unwritten exception to that rule for extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed.”
The answer found by the Court was yes – the Wrongful Death Act “applies to all unborn children, regardless of their location.”
I’m sympathetic to the plaintiff couples’ losses, and the time and thousands of dollars they spent on the chance to have a baby, but the result of the ruling has led to an egregious overcorrection.
In the immediate aftermath of the decision, at least three IVF providers in the state paused their services, citing legal risks to their medical providers.
Although the LePage decision has triggered a flurry of legal activity including demands to rehear the case and legislation in both chambers of Alabama’s legislature, damage has already been done.
Representative Terri Collins sponsored one of the bills, and hopes that they will “get those families to be back on track moving forward as they try to have children,” but that train, for some families, may have already been derailed.
Timing is essential to successful implantation, and each cycle comes with high costs – for some patients in Alabama, a postponed cycle might lead to no cycle at all, as each costs anywhere from $12,000 to $20,000. Insurance often doesn’t cover IVF treatment, placing the price back on patients.
Lawmakers in Alabama passed provisions Wednesday night to protect medical providers and fertility clinics and “provide civil and criminal immunity to persons providing goods and services related to in vitro fertilization.” An automatic repeal date was originally included in the bill text, but has since been removed. The legislation should allow patients and providers to restart IVF services as soon as possible .
Experts in Alabama are still warning potential parents-to-be not to begin treatment in the state, even if Governor Kay Ivey signs protections into law. The unpredictability is simply too much, and is only growing since 2022’s Dobbs decision.
Initially introduced to restrict access to abortion, fetal personhood laws have been introduced in 14 states and enacted in four. Under these laws, pregnant people can potentially be prosecuted for miscarrying or undergoing a medically necessary abortion. In Kansas, a new anti-abortion bill would allow pregnant people to claim child support for any expenses relating to the pregnancy any time after the date of conception. Critics in the state cite the legislation as an attempt to introduce fetal personhood into state statute.
Alabama’s decision, however short-lived, to determine that embryos are “extrauterine people” with legal rights brings fetal personhood laws back to the forefront, and spillover is already evident. In Florida, justices and lawmakers are staying attuned to LaPage prior to making their own decisions. In D.C., legislators are moving to pass bills preserving access to IVF, but it was blocked, setting the stage for state-by-state debate, further fracturing a reproductive care landscape made more erratic since the Dobbs decision.
The Alabama Supreme Court case is, in many ways, a litmus test to determine to what extent pro-life advocates are willing to go in order to enshrine a right to life. The answer is far enough that I have trouble making out what’s pro-life about the decision at all. I’ve always been pro-choice in part because of the details of my own conception. Given the increase in fetal personhood laws, and the risk legislation poses to people like my parents, who wanted nothing more than to have children, I think I’ll stay firm in my belief. The right to life I’ll opt to protect is my own, and the 2 percent of Americans who were born as a result of IVF.
