Seeing Fetal ‘People’ Everywhere: What Has ‘Dobbs’ Wrought?

Not satisfied with returning abortion regulation to the states, anti-abortion activists see fetal personhood measures as an incremental back-door strategy to a national abortion ban.

An activist outside the legislature in Alberta, Canada, on May 8, 2022, protests in solidarity with U.S. women in defense of abortion rights. (Artur Widak / NurPhoto via Getty Images)

The anti-abortion movement moved a step closer to realizing its goal of achieving fetal personhood when the Alabama Supreme Court held that frozen embryos are children for purposes of the state’s Wrongful Death of a Minor Act (Note: The fetal period does not technically begin until nine weeks post-fertilization, after the embryonic stage, but I will speak in terms of fetal rights or personhood, as is convention.) At least three Alabama IVF providers have suspended their family-building services while they sort out the ruling’s implications, such as whether unused embryos must now be preserved in perpetuity.

However, the 8-1 ruling is a victory with a twist—because it has left Republican lawmakers and their allies scrambling.

This case began when three couples sued a fertility clinic and its affiliated hospital after some embryos were destroyed by a patient who wandered into what the court refers to as the “cryogenic nursery.”

The lawsuit itself is historic: Lawsuits for compensation by the progenitors of frozen embryos that have been lost, destroyed or damaged are nothing new—but they typically involve claims for breach of contract or negligence, rather than for the wrongful death of their child. Notably, those now suing for the death of their children seemed to regard them more as property when they entered into a contractual agreement with the clinic, as they agreed to the eventual destruction of their unused embryos. One couple specifically agreed “to allow any ‘abnormal embryos’ created through IVF to be experimented on for ‘research’ purposes and then ‘discarded.’” (This would land a parent of an actual child in serious hot water.)

The Push for Fetal Personhood, Post-Roe

Efforts to legally recognize the fetus as a person entitled to the same legal rights and protections as any other individual have been on the rise since the Supreme Court overturned Roe v. Wade. Not satisfied with returning abortion regulation to the states, anti-abortion activists see fetal personhood measures as an incremental back-door strategy to a national abortion ban.

Embodying Dobbs as not going far enough, Rep. Doug Lamborn (R-Colo.) introduced the Recognizing Life Resolution last year, proclaiming, “While we are grateful that Roe has been overturned, there is still much work to be done to advance and strengthen the protection of human life, beginning in the womb. … [This] resolution is the new north star that will guide future legislation and set the precedent for our nation to secure equal protection for unborn children and preserve the sanctity of life.“

Many Republican lawmakers have hypocritically expressed support for IVF in the wake of the Alabama ruling—while also signaling support for the Recognizing Life Resolution, which acknowledges that unborn children are entitled to the protection of life and liberty as established by Section 1 of the 14th Amendment without an exception for IVF.

Similarly, the 2023 Life at Conception Act—which seeks to “implement equal protection under the 14th article of amendment to the Constitution for the right to life of each born and preborn human person”—has 125 Republican House sponsors, including House Speaker Mike Johnson (R-La.). The current iteration of the Life at Conception Act does not contain the IVF exception that was included in the original version of the bill. Nonetheless, following the Alabama decision, Johnson tweeted “I believe the life of every single child has inestimable dignity and worth. That is why I support IVF treatment…”

Speaker, what about the unused “extrauterine children”? Do they also have inestimable dignity and worth? 

Activists are pursuing fetal personhood measures in several states.

  • Bills to end abortion by way of legislative initiatives establishing fetal personhood have been filed in half of all abortion-ban states, according to the Guttmacher Institute. Even if most will never see the light of day, this is a chilling trend.
  • Less sweeping measures include that Georgians can now declare an “unborn child with a detectable human heartbeat,” as a dependent for tax purposes.
  • Bills have been introduced in several states to treat a pregnant driver as two separate people, for purposes of the state’s high occupancy vehicle lane. 

Fetal Personhood Before Roe Fell

Although the push to endow the fetus with personhood status has gained traction since Dobbs, this goal reaches back to pre-Roe.

In Roe, in an effort to insulate its criminal abortion ban from constitutional attack, Texas unsuccessfully sought to persuade the justices that the fetus has a protected right to life starting at conception. With remarkable prescience, the justices rejected the idea of fetal personhood, due in part to the “substantial problems” this would create for “new medical techniques such as … the ‘morning-after’ pill [and] implantation of embryos.”

The Alabama Supreme Court’s Judicial Leap

This brings us straight back to the Alabama decision. In concluding that frozen embryos are children, the court took as its starting point the fact that “[a]ll parties … like all members of this Court agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death” and is a child for the purposes of Alabama’s Wrongful Death of a Minor Act.

In support of this reading of the statute, the court referenced a 2018 amendment to the Alabama Constitution, declaring it was “the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

Saying the quiet part out loud, in his concurring opinion, Chief Justice Parker explained that this provision enshrines a  “theologically based view of the sanctity of human life,” which recognizes that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God…” 

For the sake of discussion only, assume the court was correct in concluding that unborn children are covered by Alabama’s wrongful death statute. One might logically assume it then engaged in a careful scientifically-based analysis to arrive at its ultimate decision that the law covers “all unborn children regardless of their location”—be that a womb or a storage tank of liquid nitrogen at a temperature of -320 degrees

However, as Justice Greg Cook points out in his dissent, by framing the question as to whether the wrongful death statute included an “unwritten exception” for “extrauterine children,” the Alabama court simply assumed the answer without any discussion whatsoever.

It may seem obvious, but frozen embryos are, well, frozen—“effectively suspended in time” as one fertility center puts it.” All “biological activity within the embryo is stopped.” Consequently, “embryos remain the biologic age at which they are frozen,” argues another, “so if you freeze them at age 35 and come back to use them at age 50, the embryo hasn’t aged.” In the meantime, unless aborted or miscarried, an in vivo embryo would be a teenager.  

Meanwhile, Alabama lawmakers are scrambling to advance measures aimed at protecting access to IVF services, with approaches cleaving along party lines. Democrats have introduced a bill that would amend the state Constitution’s sanctity of life provision by making clear that an “extrauterine embryo” is not an “’unborn life or ‘unborn child.’” In contrast, Alabama Republicans have scrambled to avoid un-defining frozen embryos as children, and are instead hiding behind measures that would grant civil and criminal immunity to providers offering “goods or services related to IVF.”

Stay tuned; The final chapter of this saga has yet to be written.

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Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.