February 21, 2024

Alabama and Frozen Embryo Personhood

The Alabama Supreme Court has ruled that an embryo created via in vitro fertilization (IVF) is a person, a child, and its destruction can result in a wrongful-death lawsuit under Alabama law. The court seems to have been either ignorant or indifferent to the consequences of this decision, which was clearly influenced by the “Christian” anti-abortion movement. Predictably, IVF in Alabama has come to an immediate standstill, as everyone is trying to figure out the implications of the Supreme Court decision.

IVF is most often used by couples who have had difficulty achieving a pregnancy in the usual fashion. IVF can be unpleasant, expensive, and frustrating. Those who embark on their IVF journey must be highly motivated to have a child. Using drugs and minor surgery, multiple eggs are typically harvested from the woman. They are then fertilized by sperm in the laboratory and are allowed to grow briefly into embryos. The embryos can be screened for genetic abnormalities at this point. An immediate attempt can be made to implant an embryo to produce a pregnancy, or embryos can be frozen for future use. Implantation is often unsuccessful, so having multiple embryos in reserve provides a necessary backup. It is not uncommon for several implantations to fail before a pregnancy is achieved. Unused embryos are either dedicated to research or discarded.

The Alabama case involved the accidental destruction of embryos. In a “normal” state—a state not controlled by far-right Republicans—a couple owning unused embryos destroyed by another party without permission would have a cause of action against that party, but not one involving wrongful death. Notice, however, since Alabama now views a frozen embryo as a person, the couple cannot be said to own it. Of greater concern, also growing out of the person status of the embryo, is the question of whether a prosecutor could indict the destroying party for murder. I see no reason why not! This is a serious concern for IVF providers who are repeatedly responsible for destroying embryos.

If a couple using IVF has no further use for their (see above) frozen embryos, it would seem that those embryos need to be preserved forever, since the state disapproves of killing children. This is, I suggest, insane. Can the embryos be taken out of state and disposed of? Who knows? The state of Alabama may assert that killing your children out of state is the same as killing them in Alabama.

Until these issues are clarified (or the state of Alabama comes to its senses), IVF in Alabama is pretty much impossible. Couples wanting to employ IVF may have to move to another state.

There may be other consequences of embryos becoming people. Will embryos result in tax deductions or gain other government benefits because of their personhood?

Anti-abortion militants have applauded the Alabama decision. There is at least some irony here. The militants pretend to want to protect children, yet the decision will prevent highly motivated couples from having children to begin with. Well, those couples can love their embryos, who neither requite their love nor ever develop into real human beings, only into a perpetual obligations.

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