Alabama’s IVF ruling criminalises women’s bodies

The state’s Supreme Court has decided that frozen embryos are people – with absurd consequences.

Just weeks after the US Supreme Court overturned Roe vs Wade in June 2022, I travelled to Louisiana to report on how the demise of abortion rights might impact fertility treatments. Already, Republicans were proposing bills extending personhood rights to fertilised eggs, and fertility specialists and patients alike were worried. It seemed unlikely, these specialists told me, that legislators would pass explicit bans on in vitro fertilisation (IVF). Instead, they said, the strict anti-abortion laws could have the downstream effects of making IVF impossible to practice, radically increasing liability – or even imposing criminal penalties – for any error, decision, or even natural consequence of the procedure that resulted in embryonic demise. Functionally banning IVF by affording legal rights to embryos seemed well within the realms of possibility.

Those fears are now coming to fruition. Since Roe fell, the so-called pro-life movement has been on a tear. Much of its work has been in the legislative realm: Republican politicians have banned or tightly restricted abortion in 21 states, and most of those bans have no exceptions for rape victims or fatal foetal anomalies. Groups and activists have also filed lawsuits to get the overwhelmingly safe abortion pill off the market. But one of the most stunning anti-abortion victories has come not from any organisation, but from Alabama’s nakedly theocratic Supreme Court, which last month ruled that frozen embryos are people (or, in the court’s terminology, “extrauterine children”), and the accidental demise of embryos at a fertility clinic can be the grounds for a wrongful-death lawsuit.

Many IVF procedures in the state were quickly halted. Hopeful women who had been injecting hormones for weeks were told their procedures were cancelled. Some women sought to move their frozen embryos out of state, but those efforts were thwarted: fertility clinics and medical transport companies alike have concluded that they cannot take the risk of moving frozen embryos. The Alabama court’s decision simply made the potential liability of anything involving frozen embryos too high. And so, all the state’s extrauterine embryos, as well as the hopes of thousands of would-be parents, are for now on ice.

The Alabama decision has sparked a backlash from just about everyone. Even many Republicans who have long pushed for legislation declaring a fertilised egg a legal person are suddenly voicing their support for IVF, and hoping voters don’t notice the clear contradiction. Or at least, they’re voicing their support now, in a presidential election year. The Alabama state senate and house, for example, both passed bills purporting to protect IVF – but set them to automatically repeal next year. Some GOP politicians have offered mealy-mouthed support of IVF, yet more than 100 House Republicans have co-sponsored the Life at Conception Act, which would extend the rights of a “human being” at “all stages of life, including the moment of fertilisation, cloning, or other moment at which an individual member of the human species comes into being”. And Republican legislators in 14 states have proposed “personhood” bills, which would define legal personhood as beginning from the moment sperm meets egg.

These proposed personhood bills are in line with the “pro-life” movement’s claim that life begins at conception. They also make clear how absurd those claims are. The Alabama case stemmed from an incident at a fertility clinic in which a patient removed several frozen embryos from storage and dropped them on the floor. The couples whose embryos were destroyed were so devastated that they sued. But it’s hard to argue that many Americans see the situation as analogous to, say, a person walking into a nursery and gunning down several children.

IVF is a complex set of procedures. It often involves harvesting eggs from a woman, joining them with sperm in a lab, and, over several days, creating multiple embryos. Those embryos are often genetically tested before implantation, and the strongest one or two are selected. Those with genetic abnormalities are usually discarded, while any additional embryos are frozen and stored, often to be discarded later on. Much of this process could be outlawed if embryos are deemed people. In fertility medicine, far more mundane mistakes than break-ins happen: hands slip, equipment shuts down, clusters of cells simply don’t cooperate. A legal ruling that allows lawsuits or criminal sanction over the demise of frozen embryos could make IVF too perilous to practise.

There’s another major consequence of this legislation that has so far gone largely undiscussed: what happens when the embryo – the “child”— is inside a woman’s body? Unless she is having her egg fertilised in a petri dish, most women don’t realise they’re pregnant until several weeks post fertilisation. Roughly half of fertilised eggs naturally don’t implant in the uterus and are flushed out without the woman knowing. If a fertilised egg is a person, are each of these “deaths” worthy of investigation for potential criminality? What should the penalty be for a woman housing one of these intrauterine children who, say, attends a hot yoga class or smokes a pack of cigarettes and then has a miscarriage?

The more the anti-abortion movement gets its way, the more Americans across the political spectrum are seeing just how treacherous a “pro-life” nation might be. The Republicans hope to obscure this reality until after November. But they are the ones midwifing this brave new world into existence – and forcing all of us to live in it.