The Alabama IVF decision was not about Dobbs

The coverage of the recent Alabama Supreme Court ruling that recognized extrauterine embyros as children and the court’s actual decision have almost nothing in common.

Headlines decry how the court has effectively “ended in-vitro fertilization” in the state, with breathless reports of clinics closing. The headlines belie the reality of a legal determination that might actually be seen as an ultimate good for IVF consumers in Alabama, who are at the mercy of an industry that is embarrassingly lucrative and largely unregulated.

Sympathetic parents

The plaintiffs in this case are sympathetic figures: three couples and IVF parents whose frozen embryos were lost due to poor security at the facility where they were stored.

A patient — not a doctor or medical professional — easily entered the cryogenic nursery at the hospital where the embryos were kept, took several out of storage and dropped them on the floor, killing them.

What parent, regardless of circumstances, would not find that devastating, not to mention infuriating? The plaintiffs sued the clinic where the embryos were created under a 150-year-old statute that allows parents to seek punitive damages “when the death of [their] minor child is caused by the wrongful act, omission, or negligence of any person.”

There is no dispute about the circumstances of the embryos’ destruction, either. (Worth noting is that the matter is not criminal, but civil. The clinic was not accused or found guilty of murder, as I’ve heard some people suggest.)

And the most important fact omitted from much coverage of the case is that there is absolutely no dispute between the parties — the clinic and the parents — about when life begins. Everyone agrees that it begins the moment the embryos are created. The defendants even admitted during oral argument that the “embryo is a life.” That was not a finding of the court.

Ultimately, the case hinges on whether or not an embryo is excluded under the Alabama statute when it is not located inside a biological uterus at the time of its death.

In other words, an extrauterine embryo is a life, but not a child, according to the defendants; the plaintiffs contend that the embryo is both. The court sided with the plaintiffs.

Technology without ethics

When the wrongful death statute was passed, the lawmakers could not have conceived of a time when embryos would ever exist outside of a womb.

The Alabama ruling is the logical consequence of a society that developed a medical technology long before it established an ethical or legal framework to govern it.

The lone dissenter on the court essentially makes this textualist case — that the law does not presuppose extrauterine embryos as children because they weren’t even notional when it was written. It’s a completely reasonable and, dare I say, “conservative,” legal argument, albeit one I disagree with.

Still, none of the facts or actual arguments of the case are relevant to the debates we’re having.

Instead we’re consumed by wildly mendacious claims that this is the latest salvo in some Republican war on parents with infertility; that this decision is a natural successor to the Supreme Court’s Dobbs ruling and the fight to outlaw abortion; or that new laws must be passed to enshrine a right to IVF. (If we need new laws at all, it’s to regulate an industry that’s like the Wild West.)

More security for embryos

There’s an irony to the reports of Alabama IVF families trying to transfer their embryos out of state. While many have argued that the liability exposure to clinics will make IVF procedures in Alabama financially untenable for most families (at $30,000 a pop, it already is), it should also make the care for and storage of embryos much more secure.

If clinics can be held financially responsible for the negligent destruction of the life in their care, they will have greater incentive to make sure it is safe.