Women’s fertility rights in America have been in a continuous state of political upheaval for the past few years. From the overturning of Roe v. Wade in 2023 to the recent ruling in Alabama that insists frozen embryos created and stored for in vitro fertilization (IVF) are children under the state’s Wrongful Death of a Minor Act of 1872, there appears to be constant updates that threaten to limit women’s fertility rights. With the abundance of headlines commenting on America’s treatment of women right now, it is easy to distance yourself from the situation; the oversaturation leading to desensitisation. However, these rulings have very real impacts on the people living in America currently, particularly in more conservative states like Alabama where abortion and fertility rights have been severely restricted. Being a global superpower, it can be frightening to see America enforce what some would argue are archaic rulings, that may cause citizens around the world to question and fear for their own should their home country follow America’s lead.
The Alabama Supreme Court issued a ruling on February 16 2024 declaring that embryos created through IVF should be considered children. Several of the state’s IVF clinics have since paused services, and lawmakers, doctors, and patients are raising concerns about the far-ranging impacts of the ruling on health care, including reproductive technology. The ruling came about after three couples underwent IVF treatment in a fertility clinic in Alabama. When these families became pregnant and gave birth, IVF produced additional embryos, and it was expected for the additional embryos to be frozen and preserved by the fertility clinic for potential use at a later date. However, in an unfortunate accident, these embryos were dropped on the floor and destroyed.
The couples decided to sue the fertility clinic and hospital, one for negligence and wantonness. However, the controversy lies with the other charge against the hospital and clinic for the Wrongful Death of a Minor Act 1872, which is an Alabama statute. At trial court, the latter was dismissed with the judge stating that embryos existing in vitro are not people for the purpose of the act. However, the couples appealed the decision to the Supreme Court of Alabama, the highest court in the state, who disagreed with the trial court and which said that the Wrongful Death of a Minor Act does apply. As the Alabama Supreme Court determined that these vitro embryos are declared personhood, the couples are now seeking punitive damages for what they say is the wrongful death of their children. When the act was first introduced, IVF did not exist, and a very different understanding of the developing foetus was held. This is the first time ever that the definition of a minor or a child under that statute has been applied to an embryo that exists in a lab.
Because the court’s decision was issued in the context of an accidental destruction, the ruling does not appear to create criminal liability for IVF providers, albeit still opens them up to be sued under the implication of the Wrongful Death Act under civil liability and negligence. This could have major implications for the future of IVF treatment and clinics in Alabama, with two out of eight fertility clinics in Alabama already pausing their IVF treatments within the first week of the ruling out of concern for the civil liability their physicians and patients might face.
IVF is a form of fertility treatment which enables doctors to test embryos for genetic abnormalities and implant ones that are healthy and with a higher chance of successful fertilisation. Since passing the decision, fears of being forced to carry an embryo likely to lead to miscarriage has risen, with patients now considering moving their embryos and themselves out of state. Miscarriages can lead to higher rates of anxiety, depression and suicide. Also, clinics fear for their future as the ruling is likely to increase insurance prices, consequently raising IVF prices if clinic have trouble staffing and paying for medical malpractice insurance. Resultingly, even fewer people may be able to afford IVF and fewer insurers will cover treatments in the future. Doctors have admitted concerns that the new law could penalise doctors for helping people start families, similar to the prosecution process for practitioners administering abortions in Alabama after Dobbs v. Jackson Women’s Health Organization. The consideration of an embryo outside uterus as a person could mean increased criminalisation of patients having an abortion, whereas currently it is only those administering abortions that face criminal consequences in Alabama.
While many citizens of Alabama may be religioius, judges are supposed to be impartial, and religion should be outside of lawmaking.
It proves a conflicting debate where even pro-life doctors are questioning the ruling, particularly the way it was delivered. Chief Justice of Alabama Supreme Court, Tom Parker, who wrote the majority decisions, drew heavily on theology and the Bible, citing the book of Genesis. He wrote “life cannot be wrongfully destroyed without incurring the wrath of a holy God.” While many citizens of Alabama may be religious, judges are supposed to be impartial, and religion should be outside of lawmaking. Parker spoke of every human being created in God’s image and so it is the state’s duty to protect them, whether they are cells or not. While Parker’s age prohibits him from running again as Supreme Court Justice, Sarah Stewart who concurred with the conservative court’s controversial ruling equating frozen embryos with children, won the Republican primary last Tuesday for state Supreme Court Chief Justice. This could mean a continuation of like-minded rulings in the future.
After Alabama’s Supreme Court ruled that embryos can be considered children, both chambers of the Alabama Legislature passed Republican-proposed bills intended to protect in vitro fertilization. These two bills were rapidly processed after the national backlash of the Supreme Court’s decision. The bills are intended to create specific protections that shield patients, doctors and other professionals engaged in IVF services from prosecution and civil suits in the state. Ensuing six hours of debate, the bills were passed to signature. They aim to keep clinics open – a quick fix to protect IVF clinics.
While practitioners are doutful [the Alabama ruling] would go to the Supreme Court, does anyone really know what is going on with reproductive rights in the US right now?
As we’ve seen in the past, one case can trigger other states to act similarly. Despite large amounts of national backlash, this does not seem to affect the ruling in the US, like we’ve seen with Dobbs. While practitioners are doubtful it would go to the Supreme Court, does anyone really know what is going on with reproductive rights in the US right now? It appears to be in constant turmoil and the future effects of Alabama’s Supreme Court’s decision reverberating throughout the US is as unpredictable as the last few years of US reproductive politics have been. However, it is important to remember the real and fearful consequences these policies bring for people with the ability to get pregnant in Alabama.
