The Alabama IVF ruling on fetal personhood sets a dangerous criminal precedent for unviable embryos.
The Alabama Supreme Court issued a ruling on Feb. 16 by an 8-1 majority that frozen embryos are constituted as “unborn children,” mirroring the state’s Constitution which recognizes rights of “the unborn.” The first of its kind, the ruling represents another win for Christian fundamentalists who are aggressively pursuing fetal personhood laws in the legislature.
Fetal personhood laws (FPLs)—which are historicized briefly in this article—started as an early 2000s movement that focused on abortion. Today, they criminalize assisted reproductive technologies.
In the Alabama case, the plaintiffs are three sets of in vitro fertilization clients (IVF)—the LePages, Fondes and Aysennes—who filed two lawsuits against the Center for Reproductive Medicine in Alabama for the accidental termination of multiple embryos. The lawsuits were the result of a patient who accessed the freezer storing the embryos, and mistakenly dropped and destroyed them. The patient, based on this ruling, can be charged with wrongful death given the recognition of the embryo as a child.
IVF, or in vitro fertilization, is a type of assisted reproductive technology (ART) in which an egg is fertilized by sperm outside the body in a laboratory setting. The fertilized egg, or embryo, is then implanted into the uterus in the hopes of achieving a successful pregnancy. IVF can be a lengthy and invasive process, involving hormone injections, monitoring of egg development, and retrieval of eggs from the ovaries. It can also be emotionally and physically taxing because it is common for unsuccessful implantations to occur.
The Alabama ruling, then, sets a dangerous criminal precedent for unviable embryos.
Alabama Fundamentalism
This ruling is symptomatic of the 21st-century emergence of fetal personhood legislation embedded within Christian fundamentalism in the United States. In fact, Chief Justice Tom Parker of the Alabama Supreme Court cited excerpts from the 2018 amended Constitution, which references the Bible’s regard of the “the unborn child [as] a child that requires protection.”
Consider the following excerpt from the this month’s ruling, which confers embryonic fetal personhood:
“In summary, the theologically based view of the sanctity of life adopted by the people of Alabama encompasses the following: (1) God made every person in His image; (2) each personhood therefore has a value that far exceeds the ability of human beings to calculate; and (3) human lives cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His images as an affront to Himself.”
—Chief Justice Tom Parker of the Alabama Supreme Court, constituting frozen embryos as unborn children
Parker’s use of the Bible as corroborating evidence situates the state as the necessary arbiter of God’s will and wrath. Further corroboration of fetal personhood is evident in the list of plaintiffs, which included the names of the embryos to further humanize this collection of cells as “Embryos A and B, Embryos C and D and Baby Aysenne.”
The legal pathway to criminalize the accidental destruction of embryos in IVF settings was a long, yet consistent road led by the GOP. Akin to a dystopic nightmare, Alabama’s state ruling is possible because of the overturn of Roe v. Wade (1973).
Recall that on June 24, 2022, six justices of the United States Supreme Court upheld Mississippi’s Gestational Age Act, which banned abortion after 15 weeks; the only exceptions to this state-level ban were potential maternal mortality, or severe fetal abnormality. The Dobbs v. The Jackson Health Organization overturned both Roe v. Wade (1973), which established abortion as a fundamental right protected by the due process clause of the 14th Amendment of the U.S. Constitution; and Planned Parenthood v. Casey (1992), which upheld not only the right to have an abortion, but also reiterated that privacy and autonomy are central to reproductive rights.
The sociopolitical ramifications of the overturning of Roe are profound—resulting in the removal of federal legal protections on reproductive healthcare, and leaving reproductive autonomy to state jurisdiction.
Fetal Personhood Laws (FPLs)
Without the federal protection of Roe, 13 state trigger bans (including Alabama) went immediately into effect wherein abortion became illegal with a few exceptions, such as when the life of the mother is at risk or in cases of rape or incest.
As of January, abortion is extremely restricted in 15 states: Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin.
These laws implicate healthcare workers by requiring them to violate patient privacy and report suspected abortions and lead to prosecuting people who had abortions or miscarried. The resurgence of Christian fundamentalism has resulted in legislation that humanizes the fetus through “fetal personhood” measures. To be protected and recognized under the law, one must first be recognized as a person. The question of when life begins is largely determined within a given cultural, legal and social set of circumstances.
Fetal personhood refers to the idea that a fetus should be granted the same legal and civil rights as a person, including the right to life and protection under the law.
In the United States, there is no national consensus on when life begins, and states therefore decide when a person is considered as such, and what rights that person has. Some U.S. states’ fetal personhood laws protect a fetus’ right to civil liberties, which has reconstituted abortion as murder. The value of the fetus within the context of fetal personhood laws has superseded that of the womb carrier—according to Michele Goodwin, American legal scholar and executive producer of Ms. Studios.
U.S. laws are indeed evolving to criminalize abortion based on fetal personhood, but it should be noted that criminalization abortion is not a new phenomenon.
- At least 61 people were criminally investigated or arrested for ending their own pregnancies or helping someone else do so from 2000 to 2020, according to a 2023 study released by the CUNY School of Law and six reproductive rights organizations.
- From 2006 to 2020, more than 1,300 people were arrested in relation to their conduct during pregnancy.
Prior to the Dobbs decision, these prosecutions regularly occurred through prosecutors’ improper use of laws meant to protect pregnant people and children against them.
Fetal personhood laws (FPLs) currently exist in the United States, in some jurisdictions expressed through “heartbeat bills” by contending life begins when a heartbeat is detected as early as six weeks. Fetal personhood refers to the idea that a fetus should be granted the same legal and civil rights as a person, including the right to life and protection under the law. In Texas, the heartbeat bill passed in 2021 banned abortion after six weeks (but in reality, just two) and created a civil penalty of $10,000 for anyone performing an abortion after a fetal heartbeat is detected.
Heartbeat bills are ideological examples constituted into law that humanize the fetus.
Heartbeat legislation was first introduced in Ohio in the early 2010s and was proposed 26 times before gaining traction. The determined, sustained effort of the sample bill was led by Janet Folger Porter, the creator of Ohio’s Faith2Action organization. As a legal strategy, the Ohio heartbeat bill was the original document later used for copycat bills in dozens of states in the U.S.
The heartbeat bills that gained traction in 2019 were part of a 10-year effort from far-right interest groups who are incredibly organized and have legal funds and full-time lobbyists. The Center for Public Integrity describes the success of heartbeat bills as “10 years in the making,” reporting that “from 2010 to 2018, more than 400 abortion-related bills that were introduced in 41 states were substantially copied from model bills written by special-interest groups.”
The issue with fetal personhood laws are not only their flagrant violation of church and state, but also their criminalization of reproduction itself and corresponding assisted technologies. Furthermore, fetal personhood ultimately diminishes the integrity and value of human life by exalting the unborn over the already-living.
Up next:
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
