The Alabama Supreme Court has ruled that frozen embryos can be considered children under state law, a decision that has drawn criticism from the White House and the top US infertility association.
“This is the first full-act, for any judicial or legislative entity in the states, that has attempted to legally equate the fertilised egg in a freezer in a clinic, as being the same as a foetus being gestated in a womb as the same as a born baby,” said Sean Tipton Chief Advocacy and Policy Officer at the American Society for Reproductive Medicine, a non-profit organisation that advocates for the advancement of reproductive science and practice.
Here is more about last week’s ruling and its implications for fertility treatment in Alabama.
What has the Alabama court ruled about embryos?
Three couples filed a lawsuit against a fertility clinic after their frozen embryos for in vitro fertilisation (IVF) were destroyed. The embryos, stored in a cryogenic nursery, were destroyed by a patient who wandered into the nursery and accidentally dropped several of them on the floor.
A lower court ruled the embryos could not be defined as people or children and dismissed the wrongful death claim.
However, in a 7-2 ruling, the all-Republican Alabama Supreme Court disagreed. Citing Bible verses and an 1872 state law called the Wrongful Death of a Minor Act, Justice Jay Mitchell declared parents may sue over the death of a child regardless of whether the child is born or unborn.
Mitchell said the court had previously ruled that fetuses killed while a woman is pregnant are covered under the same act and nothing excludes “extrauterine children from the act’s coverage”.
What are frozen embryos?
IVF is an assisted reproduction method in which eggs are removed from the ovaries and fertilised with sperm outside the body. The resulting embryos can be frozen through a process called cryopreservation and then saved for later use.
The embryos can be placed in a woman’s uterus to cause pregnancy. This treatment method is used by couples who have been unable to conceive due to health issues in either the male or female partner.
The 14th Amendment to the US Constitution says a person is a citizen when they are born. This implies an unborn fetus does not have the same rights as a citizen.
In the 1970s, lawyers representing Texas in the landmark Roe v Wade abortion case before the US Supreme Court argued that a fetus is a person, entitled to the rights detailed under the 14th Amendment. In 1973, the court ruled that Texas was wrong and the constitution protected a right to abortion.
However, when Roe v Wade was overturned by the Supreme Court in 2022, many states quickly introduced laws to ban abortion.
Not all these abortion laws establish foetal personhood or the idea that foetuses have the same rights as fully developed, born children. Many also do not specify if an embryo, which does not develop into a foetus until the end of the 10th week of pregnancy, is included in this. Now, it seems, Alabama has decided it should be.
However, Campbell said: “That’s foetal personhood, which would still be different than embryo personhood. Embryos are microscopic cells. You can not even see them with the naked eye.”
What are critics of the ruling saying?
The Alabama ruling is “a cause of great concern for anyone that cares about people’s reproductive rights and abortion care”, said Dana Sussman, deputy executive director of Pregnancy Justice, an advocacy organisation for reproductive rights.
She called the decision a “natural extension of the march toward foetal personhood”.
The Medical Association of the State of Alabama warned in a brief to the court of the possible detrimental impact of the ruling on IVF treatment in Alabama.
The ruling could possibly substantially increase the costs associated with IVF, it explained. The fear of being sued may result in Alabama’s fertility clinics closing and fertility specialists moving to other states, potentially making fertility treatments such as IVF inaccessible to people in Alabama.
Furthermore, the ruling could raise questions about embryos which fail to develop in the womb. “So now the question is if an embryo does not develop, will this now be considered wrongful death? manslaughter? murder?” asked Betsy Campbell, chief engagement officer at Resolve.
Could this ruling have an impact on reproductive healthcare in Alabama?
The ruling could potentially impact fertility treatments and the freezing of embryos, which had previously been considered property by the courts.
“This ruling is stating that a fertilised egg, which is a clump of cells, is now a person. It really puts into question the practice of IVF,” Barbara Collura, CEO of Resolve: The National Infertility Association, told The Associated Press.
In a statement, Resolve described the decision as a “terrifying development for the 1-in-6 people impacted by infertility” who could be helped by in vitro fertilisation.
As an immediate result of the ruling, at least one Alabama fertility clinic has been instructed by their affiliated hospital to pause IVF treatment, according to Sean Tipton, a spokesman for the American Society for Reproductive Medicine. “We expect the second largest to make a similar announcement,” he added. “So it’s had an immediate impact on people in Alabama not being able to get the care they need. To have the children and the grandchildren that they so desperately want.”
“My guess is they’re trying to figure out this new legal landscape and what kind of medicine they can practice, which is going to hurt everybody who needs medical assistance to have a baby,” added Campbell.
Dr Paula Amato, president of the American Society for Reproductive Medicine, said a decision to treat frozen fertilised eggs as the legal equivalent of a child or gestating foetus could limit the availability of modern health care.
“No healthcare provider will be willing to provide treatments if those treatments may lead to civil or criminal charges,” Amato said.
“We’re very concerned for the people in Alabama who simply want to have a baby and suffer from infertility which makes it difficult to get pregnant or stay pregnant, and need medical treatments to try to have a baby,” said Campbell.
IVF patients are also worried. “Without IVF, I would have to probably go through several more miscarriages before I even had an option of having a baby that is my own,” said 26-year-old Gabby Goidel, who had been pursuing IVF treatment in Alabama.
What is the ethical case?
While some Americans believe that embryos are children, many researchers, scientists, doctors and academics do not agree.
Ethics studies assert that what makes us human is our brain, which gives us consciousness. “The fertilised egg is a clump of cells with no brain,” wrote Michael S Gazzaniga, a cognitive neuroscience professor at Dartmouth College, in his book The Ethical Brain.
Gazzaniga added that no sustainable or complex nervous system is in place until about six months of gestation.
Jonathan Crane, a professor of bioethics and Jewish thought at the Center for Ethics at Emory University in Atlanta, Georgia, said in an interview with an Ohio publication in 2018 that embryos are not equivalent to humans and can develop into foetuses only inside the uterus.
How have reproductive healthcare laws affected other states?
After Roe v Wade was overturned, 24 US states had enacted laws designed to ban all or nearly all abortions by January 2023. In North Dakota and Wisconsin, abortion is not available at all, according to the Guttmacher Institute, a global research organisation for reproductive rights.
While the overturning of Roe v Wade brought a storm of abortion bans across the US, it did not affect the legality of IVF procedures, which remain legal in all states, including Alabama, for now.
However, this latest ruling is likely to cause confusion and reignite discussions about whether IVF should be restricted, experts said.
White House spokesperson Karine Jean-Pierre said the Alabama ruling is “exactly the type of chaos that we expected when the Supreme Court overturned Roe v Wade and paved the way for politicians to dictate some of the most personal decisions families can make”.
