If frozen embryos are persons, then IVF is suddenly at risk
When the Supreme Court reversed Roe v. Wade in 2022, some argued that there was little reason to worry about what would happen to in vitro fertilization. After all, IVF was not the main target of the antiabortion movement, and access to infertility treatment was popular among both Republicans and Democrats. But the ongoing fight for fetal personhood is indeed a threat to IVF, as a recent decision from the Alabama Supreme Court has made all too clear.
The Alabama case involves three couples who pursued IVF at a hospital-based center in Mobile, a city of nearly 200,000, from 2013 to 2016. Their embryos stayed there, frozen, until 2020, when a hospital patient entered the facility where the embryos were stored and handled their containers, burning his hand on account of the subfreezing temperatures, causing him to drop and inadvertently destroy them. The couples filed two lawsuits against the clinic, arguing that not only had the center been negligent in the embryos’ storage but it had also violated the Wrongful Death of a Minor Act, which applies to unborn children.
The Alabama Supreme Court ruled in the couples’ favor, asserting that frozen embryos did qualify as children under the law — a step beyond usual arguments for fetal personhood — which confers legal rights to the fetus and usually applies only to life in the uterus. In its decision, the court pointed to language in the state constitution that ensures “the protection of the rights of the unborn child in all manners and measures lawful and appropriate,” to argue that embryos counted as persons under the law. The court’s chief justice suggested the ruling was compelled by divine law: “Life cannot be wrongfully destroyed without incurring the wrath of a holy God,” he wrote.
Hundreds of thousands of Americans rely on IVF each year, and roughly 2 percent of all births are attributable to the procedure. Although IVF was controversial when it was pioneered in the 1960s and 1970s, it has since gained widespread acceptance, including within the antiabortion movement.
Take Mike Pence, the former vice president, who has been open about his family’s experience with infertility. Although a decades-long push to restrict abortion unfolded in the United States to great effect even before the Supreme Court reversed Roe, no comparable movement attacked IVF. It might make sense to think that the antiabortion movement would embrace IVF, as it leads to parenthood for more Americans — and to the birth of more children. But really, the antiabortion movement’s true goal is not only to ban abortions but to ensure that fetuses have constitutional rights.
Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe, didn’t go quite that far. It held that women do not have a right to an abortion, but the justices did not then rule that the fetus was a rights-holder or that abortion was impermissible. But Dobbs v. Jackson did open the door to a broader fight for fetal personhood, a major win for the antiabortion movement. Abortion opponents today argue that the meaning of the word “person” under the 14th Amendment applies from the moment an egg is fertilized — and that if it’s true that a fetus or embryo is a legal person, the Constitution doesn’t allow states to recognize reproductive rights.
That’s where the threat to IVF comes in.
To make IVF effective, patients create excess embryos, which can be saved for future use, donated for research, or destroyed. Given the relatively low chance of success for each IVF cycle, storing embryos for future use improves the odds that the process will lead to the birth of a healthy child. Now that the Alabama court has ruled an embryo a legal person in the state, IVF clinics run a significant risk of legal action if they destroy one — even if the creators of the embryo don’t want it implanted. That could make fertility doctors reluctant to practice in Alabama at all.
The same goes for donating embryos for research. Some in the antiabortion movement argue that even storing excess embryos shouldn’t be allowed — and that doctors should have to implant each embryo they create.
The effects may not be limited to Alabama. Other states have passed laws that consider a fetus a person in utero at one stage of development or another. Georgia’s law, for example, recognizes personhood and bans abortion at six weeks, allows pregnant persons to claim fetuses as dependents for tax purposes, and requires parents to pay child support during pregnancy. An Arizona judge blocked a 2021 law recognizing personhood at fertilization. Following Alabama’s example, such states’ courts may feel emboldened to issue similar rulings expanding their state’s definition of fetal personhood. These steps will be unpopular, but that will not discourage antiabortion groups from lobbying for them. The more states whose laws and rulings treat a fetus or embryo as having rights, the more the antiabortion movement will press its case that the same should be true under federal law. The strategy won’t likely yield results in the conservative Supreme
Court right away, but it doesn’t have to. The antiabortion movement played the long game in undoing abortion rights and is ready to do the same when it comes to fetal personhood.