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Alabama Embryo Ruling Brings Much-Needed Regulation to Fertility Industry

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For too long, the fertility industry in the United States has functioned like the Wild West. Few federal laws regulate in vitro fertilization (IVF) treatments, and only a handful of state laws—such as Louisiana’s embryo protection law and Colorado’s ban on anonymous egg and sperm donation—address the moral and ethical questions raised by the artificial creation of human life.

A landmark decision by the Alabama Supreme Court could change all of this. Last Friday, the court ruled 7-2 in favor of protecting embryonic human life under the state’s Wrongful Death of a Minor Act. “Unborn children are ‘children’ under the Act,” contends Justice Jay Mitchell in the primary opinion, “without exception based on developmental stage, physical location, or any other ancillary characteristics.”

This decision ensures that the well-being of children, not financial gain, is the top priority when it comes to IVF and embryonic cryopreservation.

The case arose in 2020 when a patient in a Mobile, Alabama, hospital wandered into an adjoining, unsecured fertility clinic and accidentally destroyed a container of frozen embryonic children. When the parents first sued the clinic and the hospital for negligence under the Wrongful Death of a Minor Act, the trial court sided with the defendants, claiming that “the cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ or a ‘child,'” but are the “property” of the parents.

That initial ruling highlights a harsh reality: IVF treatments in the United States rely on the routine destruction of embryonic life, either intentionally or through neglect. Clinics often create a surplus of embryonic children to test them for genetic problems or to select embryos based on their sex or possible features. They then implant wanted embryos, or freeze them for later use, and destroy the unwanted embryos.

As news of the state supreme court’s decision spreads, many warn that it could threaten access to IVF or place undue burdens on fertility clinics. On Wednesday, for example, the University of Alabama Birmingham (UAB) announced that it was suspending IVF treatments until further notice.

Pregnancy ultrasound
Illustration picture shows a doctor doing an ultrasound examination during a visit of a pregnant woman to her gynaecologist, in Mechelen, Thursday 31 January 2019.

JASPER JACOBS/AFP/Getty Images

But that’s not what the decision says. The state supreme court didn’t outlaw IVF; it simply recognized that embryonic children are persons under the law. As Chief Justice Tom Parker points out in his concurring opinion,

Although it is for the Legislature to decide how to address this issue, I note briefly that many other Westernized countries have adopted IVF practices or regulations that allow IVF to continue while drastically reducing the chances of embryos being killed, whether in the creation process, the implantation process, the freezing process, or by willful killing when they become inconvenient.

So, UAB’s decision to shut down its fertility clinic doesn’t mean that the state supreme court’s decision is extreme or anti-IVF. It simply suggests that UAB felt its protocols for dealing with embryonic human life weren’t compatible with the high standard the court adopted in this decision. In short, it says a lot more about the extremism of an unregulated fertility industry than the extremism of the court.

A decision to hold fertility clinics to a higher standard should be a great encouragement to both potential parents and children. Embryonic children in Alabama will now be treated with the level of love and care that any parent would want for their child. As Justice Mitchell’s majority opinion makes clear, there exists no “unwritten exception” in the law that takes away the legal status of “unborn children who are not physically located ‘in utero’…at the time they are killed.”

The defendants argued that the location of the child determines his or her status as a “person” or “child,” and thus children within a biological womb are protected, while extrauterine embryonic children are not. In the majority opinion, Justice Mitchell took this claim on directly, arguing that if the personhood of a given child relies on the child’s development “in utero” or his or her delivery from a biological as opposed to an artificial womb, then “even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a ‘child’ or ‘person'” under Alabama state law.

Everyone knows that would be wrong. Despite claims that Alabama is prohibiting IVF, the truth is that this ruling merely ensures that parents using the service can rest assured that their children will receive the same legal protections as everyone else’s. Lawmakers around the country should see this decision as an opportunity to put the well-being of innocent children first.

Emma Waters is a Research Associate for the Richard and Helen DeVos Center for Life, Religion and Family at The Heritage Foundation.

The views expressed in this article are the writer’s own.