In an 8–1 decision published last week, the Alabama Supreme Court ruled that embryos created through in vitro fertilization are persons, which gives parents the ability to sue for wrongful death if the embryos are destroyed. The decision has potential ramifications for opposition to abortion on the grounds of fetal personhood.
Embryo destruction is a common result of IVF, as the procedure creates an excess of embryos at the outset to increase a woman’s chances of successful implantation and pregnancy. Spare embryos are frozen and stored in tanks by IVF clinics, and parents can choose whether to discard their children as medical waste, donate them to another woman or to scientific research, or store them for a yearly fee. About 2 percent of pregnancies in the United States result from IVF, a doctor told the Associated Press.
The Alabama Supreme Court ruling resolved two lawsuits filed by three sets of parents who had undergone IVF treatments and had frozen their spare embryos at a hospital in Mobile, Alabama. In December 2020, a patient at that hospital walked into the fertility clinic and removed the embryos from the cryogenic nursery. The frozen embryos were so cold to the touch that the patient dropped them, resulting in the death of the embryos. Their parents sued for wrongful death.
The Alabama Supreme Court has “long held that unborn children are ‘children’ for the purposes of Alabama’s Wrongful Death of a Minor Act,” the majority explained. The lawsuit’s central question was whether that act contained “an unwritten exception … for extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed.”
Arguing that an unborn child is a “genetically unique human being whose life begins at fertilization and ends at death” — a definition that includes frozen embryos — the court ruled that location inside or outside the womb does not alter the legal personhood of the unborn. Thus, embryos created through IVF must be considered in the state’s protections for the “sanctity of unborn life and the rights of unborn children, including the right to life” articulated in the Alabama Constitution. (RELATED: Surrogacy Is in the Bible?)
The court’s decision did not prohibit IVF, but the logical dominoes are already falling. When it comes to homo sapiens, the creation of an embryo with a unique genetic code always means that a new person has been created. Given the legal recognition of this basic biological reality, IVF clinics will finally have to reckon with the unborn children stored in their freezers — or close altogether.
But the ruling has potential implications beyond IVF, too, as many have been quick to notice. One New York Times columnist called the decision the latest episode in the “religious crusade to downgrade the personhood of women by conferring personhood on frozen embryos.” But personhood isn’t a zero-sum game. Acknowledging another person’s humanity doesn’t degrade one’s own humanity — in fact, quite the opposite.
The Alabama Supreme Court made a fairly simple judgment: human life does not become more or less worthy of protection based on accidental qualities like location, size, stage of development, or degree of dependency. If a frozen embryo is a person entitled to legal protections, then so is an unborn child in utero. The ramifications for abortion are evident; whether or not the pro-life movement can coalesce around the issue is a different story.
In December, Kellyanne Conway released polling that showed high support for IVF, with 78 percent of self-described “pro-life advocates” and 83 percent of evangelical Christians supporting the practice. Protestant Christians take varying stances on the practice, while the Catholic Church firmly opposes IVF because it eliminates sex as the means of achieving pregnancy and results in the death of over 90 percent of the embryos created. (READ MORE: Kellyanne Conway’s Contraception Gambit)
For fifty years, the pro-life coalition united various groups with otherwise differing views around a central goal: ending abortion. But now that Dobbs v. Jackson Women’s Health Organization has replaced Roe v. Wade and returned the abortion issue to the states, cracks are beginning to show.
The goal of ending abortion remains evergreen, but the pro-life movement is split on questions of both strategy and principle. It’s hard enough to navigate disagreements about a national ban versus state-level bans. As pro-life politicians vie for votes from citizens who see little problem with abortion, differing opinions on issues like contraception and IVF will increasingly come to the surface. After all, the poll in which Conway gauged support for IVF among pro-life respondents was commissioned to frame contraception as a “winning issue” among women otherwise skeptical of the GOP’s position on abortion.
But perhaps this ruling from the Alabama Supreme Court will give pro-lifers pause. Acknowledging the personhood of unborn children seems far more likely in cases of IVF, when those children are wanted by parents with a hefty financial investment, than it does in cases of abortion. And no matter how popular a procedure may be, a child’s right to life isn’t only relevant when it’s threatened by an abortionist.
If ending IVF is a step toward abolishing abortion, some people in the pro-life movement will need to reckon with what actually happens at the fertility clinic and what we owe to the children who are created only to be frozen and thrown away.
Mary Frances Myler is a writer from Northern Michigan now living in Washington, D.C. She graduated from the University of Notre Dame in 2022.
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