For the first time, a frozen embryo has been recognized by the law as a person with rights. This decision by the Alabama Supreme Court last week is a huge victory for anti-abortion groups, who have long sought to pass fetal personhood laws. This time, by declaring not just a fetus but a fertilized egg in a lab the equivalent of an “unborn child,” the courts have done them one better. If this keeps up, anti-abortion groups may succeed at outlawing both abortion and in vitro fertilization, or IVF.
This case was about whether couples whose embryos have been inadvertently destroyed in a lab can sue for wrongful death. The embryos in question are eggs that have been fertilized outside the uterus and cryopreserved by a fertility clinic for later implantation. The couples’ attorneys cast embryos cryopreserved in liquid nitrogen as “embryonic children” and “human lives.” They seem to have found a receptive audience on the Alabama Supreme Court, with the decision referring multiple times to what the majority called “extrauterine children.”
This case was the culmination of explicit anti-abortion campaigning. The judges based their ruling in part on a recent amendment to the state constitution, enshrining the “rights of unborn children” in law. When voters considered this amendment in a 2018 ballot initiative, the political director of the anti-abortion group Alliance for a Pro-Life Alabama told the Associated Press that the amendment would “position Alabama in the future for public policy decisions on abortion if Roe. v. Wade was overturned.” Indeed, the Christian-right legal advocacy organization that brought the case overturning Roe, Alliance Defending Freedom, celebrated the Alabama Supreme Court’s decision in the IVF case, the group’s senior counsel adding they hoped “that this ruling encourages voters, lawmakers, and courts to recognize that life is a human right, no matter the circumstances.”
Reproductive health care providers had already forecast, in briefs to the court, what such a decision may mean: the end of IVF and potentially other fertility treatments in Alabama. It is current practice in IVF, an amicus brief filed by the Alabama Medical Association explained, to extract and fertilize multiple eggs, freezing the embryos that were not implanted so that there is no need for someone to undergo costly, taxing rounds of hormone treatments to stimulate egg production, followed by the surgical retrieval of eggs—“it is safer, more efficient, and simply better.” As for what happens to their cryopreserved and stored embryos should they not use them, some choose to keep them for future pregnancies, some may donate them for scientific research, but it is up to them. This ruling stands in the way of people’s reproductive autonomy. It could require any frozen embryo to be stored indefinitely, as the medical association brief put it, “even after the couple who underwent the IVF treatment have died and potentially even after the couple’s children, grandchildren, and even great grandchildren have died.”
It’s also possible that those seeking IVF treatment will not get to make that choice at all. The one dissenting Alabama Supreme Court judge, Justice Greg Cook, was blunt about the future of IVF: “The creation of frozen embryos will end in Alabama,” he wrote. “No rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.” Sure enough, within days, at least one fertility clinic in the state has temporarily suspended offering IVF, for fear of possible prosecution. Other patients currently undergoing IVF are unsure of how to proceed. “The ways that we keep diminishing people who are capable of becoming pregnant and their pain and their suffering and their physical health,” Robin Marty, executive director of the West Alabama Women’s Center, told the Alabama Reflector, “in order to keep up this continuing line of ‘fertilized eggs must be protected at all cost.’ It’s horrifying down here.”
Where might this ruling take us in this legal era following the Dobbs decision—an era already marked by uncertainty as if by design? (Some media coverage so far has unfortunately only fed the uncertainty, mistakenly referring to “frozen eggs” rather than “frozen embryos.” Frozen eggs have not been found to be people—at least not yet.) You might think the ramifications are on hold until this case hits the Supreme Court, but that’s unlikely, law professor Mary Ziegler told NPR. Instead, she wrote, “the court’s ruling could set a precedent for other conservative states that embrace the idea of personhood before birth, making it harder to pursue IVF across large swaths of the country.” It would in turn fuel anti-abortion groups’ efforts at having fetal personhood recognized in the Constitution, helping them “make the case that if states already sometimes treat an embryo or fetus as a rights-holder, constitutional law should do the same.” Liberty Counsel, another Christian law project, swiftly added the Alabama Supreme Court decision on embryos to a new filing with the Supreme Court of Florida, hoping it would support their efforts to keep a constitutional amendment recognizing abortion rights off the ballot in the November election.
The ruling leaves open another legal question: If a frozen embryo is a child, and if it may not be destroyed, what outcome does the law permit? One Alabama woman already in IVF treatment said her doctor told her it might be possible to have her remaining embryos moved out of state. The judges who declared concern for “extrauterine children” hand-waved such concerns, going so far as to write that it was not necessary for the court to address “the public-policy implications of treating extrauterine children as human beings.” They seemed more focused on theological matters, claiming that the law recognizes “that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.” Would some other individual be allowed to “adopt” an embryo?
They already are. The practice of embryo adoption already exists, with somewhat formalized adoption programs using “Christian values” to make determinations of who can adopt an embryo, barring queer couples, for example, just as they do for actual children. Christianity Today wondered just a few months ago if embryo adoption might be “the next pro-life frontier.” There is also a name for such adopted embryos circulating among Christian adoption services: “snowflake baby.” One of them, a young woman named Hannah, even filed a brief in the Dobbs case—to the best of the author’s knowledge; the brief read, “the first former frozen embryo person to file an Amicus Curiae Brief as an adult at the United States Supreme Court.” It includes a retelling of her adoption story, used to argue that viability is at conception. In this light, the ultrareligious language of the Alabama ruling feels less surprising. This is where the anti-abortion movement has always been headed. This time, they’re getting what they want before most people have realized what they were after.
