An Alabama court may have just ended IVF in the state—opening up the whole IVF process to politically-motivated legal scrutiny and penalty.
This story originally appeared on Jill.substack.com, a newsletter from journalist, lawyer and author Jill Filipovic.
The availability of in-vitro fertilization in Alabama may now be in question after the state’s Supreme Court ruled that embryos kept in clinic freezers are considered persons under the law, and protected by the state’s Wrongful Death of a Minor Act. It’s a shocking and jarring decision that radically extends the bounds of legal personhood, tosses any claims to originalism aside, and seems primed to make a variety of fertility treatments either extremely costly for patients, or extremely legally risky for clinicians.
If you want a sense of just how overtly theocratic the opposition to abortion and IVF are, I invite you to read the dissent in the Alabama decision, which was penned by the court’s chief justice and is a really really long argument that can be basically summed up as: “God said so.” So that’s who’s leading the court in Alabama.
The majority opinion isn’t much better: It refers to embryos created via IVF and kept in cold storage as “extrauterine children,” and uses other Orwellian “pro-life” terms to obscure and redefine basic scientific and medical processes.
Here’s what happened that gave rise to this case. Three couples—Jason and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne—went to the Center for Reproductive Medicine in Alabama for IVF procedures between 2013 and 2016. Each couple had embryos created, and each went on to have two children from some of those embryos, leaving the rest frozen in storage for several years.
In 2020, a patient from the adjacent hospital went wandering through the clinic’s halls, made their way into the freezer storage room, removed some of the embryos, and dropped them, destroying them. These three couples then sued under Alabama’s Wrongful Death of a Minor Act. (There were negligence claims as well, which were found moot).
If any embryo that fails to survive in an IVF clinic can be considered a ‘wrongful death of a minor,’ that puts IVF clinics at pretty severe legal risk.
The Alabama Supreme Court heard this case on appeal, and found for the couples, holding that the death of their embryos counted as wrongful deaths of minors under Alabama law.
These three couples were clear that they didn’t want their case to be used to impede access to IVF in Alabama. Unfortunately, they don’t really have a say over that.
It is of course not guaranteed that this case will shutter IVF clinics, and even with this ruling in place, a great many fertility treatments can still remain on offer. But if any embryo that fails to survive in an IVF clinic can be considered a “wrongful death of a minor,” that puts IVF clinics at pretty severe legal risk.
The circumstances in this case—a rogue patient who went thumbing through a freezer—were extreme. It makes sense to me that the plaintiffs sued, even if I object to the statute they sued under: It’s outrageous that a random person was able to get into the freezer area; the clinic did have an obligation to store these embryos securely and as promised. One hopes and assumes that the circumstances that gave rise to this care are highly unusual.
But what’s not unusual in IVF and any other medical procedure is human error, or simple biological non-cooperativeness that may be mistaken for human error, or the destruction of embryos. It’s not unusual in fertility treatments for an egg retrieval to harvest more eggs than eventually become embryos; it’s not uncommon for embryos to not make it through an IVF round, or for some to be tested and found to be unhealthy and discarded. It’s extremely common for embryos created in the IVF process to be discarded or donated to science years later, after the people who created them feel they’ve completed their families.
But this Alabama decision now opens up the whole IVF process to politically-motivated legal scrutiny and penalty. Any embryo that doesn’t survive is the potential subject of a wrongful death suit. What happens if there’s, say, a hurricane, the power goes out, generators fail, and embryos cannot be kept cold? What happens if a couple believes that more of their embryos should have survived, and sues? Even if they don’t win, an expensive fact-finding mission and lawsuit may ensue.
These three couples were clear that they didn’t want their case to be used to impede access to IVF in Alabama. Unfortunately, they don’t really have a say over that.
I suspect that’s a level of liability that most providers simply aren’t willing to take on, especially in this moment, when the anti-abortion movement is emboldened, aggressive, and looking to exert far more extreme control over reproduction (not to mention make an example out of doctors).
And this is just the beginning. If frozen embryos are persons under Alabama law, can fertility clinics legally destroy them or donate them to scientific research, or is that murder? Can scientists conduct research on them? Can couples create them if they may not use all of them? These are questions the court specifically sought to avoid. But the door has been kicked open.
There are many obvious ways in which deeming an embryo a person under the law is deeply silly, especially when that “person” is kept in cold storage (it is generally not recommended to deep-freeze children).
- Can Alabama parents list their embryos as children on their tax returns and get tax breaks in perpetuity?
- Can a person sue their ex partner for embryo support?
- Can a low-income Alabamian collect greater welfare benefits because her frozen embryos are additional children?
- If you have two children and four embryos in storage, are you a mother of six, and have you falsified any documents that say otherwise?
- If you are going through the IVF process and don’t have children yet but do have embryos, do you tell people you’re a mom or a dad?
- Do you declare that on legal documents and visa entry forms and on your Twitter bio?
- What are these extrauterine children’s legal names? What are their birthdays? (You’ll need that information for their Social Security cards).
I don’t mean to sound insensitive or like frozen embryos are nothing—they are genetically unique, they are forms of life, they are hope and potential, if things work out they will eventually become children, and their existence is often deeply meaningful to the people whose DNA created them. But they are also not born children. That doesn’t make them worthless. It does make them a different, very early form of human life. And the law should reflect that.
IVF is, unfortunately, not safe from the anti-abortion movement. Many of the movement’s leaders have indicated that they would like to outlaw it, and while right now they have bigger fish to fry, abortion opponents have never stopped at simply (“simply”) banning abortion. They want full control over reproduction, and over women specifically. And Alabama just put us all one step closer to their ultimate goal.
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