Supreme Court Silence on ‘Personhood’ Leaves IVF Vulnerable

The Alabama high court’s “personhood” decision, which temporarily shut down IVF in the state, has the potential to reverberate to other areas of the country now that the US Supreme Court has allowed it to stand.

The February decision that life begins at fertilization and that unborn children are people for purposes of Alabama’s wrongful death law was swiftly met with legislation protecting in vitro fertilization providers from civil and criminal liability.

But that shield law doesn’t answer all the questions raised as a result of the Alabama top court’s decision—or make much sense to someone who believes an embryo is a child, said Jonathan Will, a professor at the Mississippi College of Law who heads up the school’s bioethics and health law center.

Will cautioned against reading too much into the Supreme Court’s denial of review, noting that the justices accept very few cases each year.

Still, the development could leave it to the states to define the meaning of “personhood,” he said.

Sean Tipton, chief advocacy and policy officer at the American Society for Reproductive Medicine, said he “wouldn’t be surprised” if anti-abortion state lawmakers introduce bills limiting IVF despite federal support for the procedure.

There’s “probably no appetite for straight-out prohibiting” IVF, Tipton said. But state lawmakers could adopt measures that, for example, limit the number of embryos that can be produced or frozen, he said.

Old Concept, New Application

The concept that life begins at fertilization isn’t new—anti-abortion advocates have used the argument for years, and it underlies state fetal homicide laws that permit prosecutions for killing an embryo or fetus while injuring a pregnant person.

But the doctrine received renewed interest when the Alabama Supreme Court earlier this year applied it in the IVF context.

The decision threatened to upend a $40 billion industry and pushed IVF—where destroying frozen embryos is a normal and accepted practice—into the spotlight, making it a key issue in the upcoming presidential election.

Both former President Donald Trump and Vice President Kamala Harris have endorsed measures to protect IVF. And Republicans in Congress have indicated their support by introducing bills that would mandate health plan coverage for assisted reproduction procedures or enhance tax credit for families, Tipton said.

There’s “a lot of momentum” for protecting access to IVF, he said.

Tipton also doesn’t see any lasting threat to IVF as a whole just because the Supreme Court declined to wade into the debate.

Nothing “has changed how physicians do IVF” since Dobbs v. Jackson Women’s Health Organization, which held there is no constitutional right to abortion, he said.

And while the IVF clinic at the heart of that suit initially appeared to be closing, it’s merely moving outside the hospital where it was located, he said.

Other Contexts

Congressional Republications haven’t fully defined what their “support” for IVF might look like, Will said. They also twice blocked Democratic-led provisions to protect IVF access nationwide.

That leaves it to the states to address IVF and the extent to which fetal personhood affects the practice.

A spokeswoman for Alliance Defending Freedom, a conservative Christian legal advocacy group, said she wasn’t aware of any proposed state legislation to prohibit or outlaw IVF.

But abortion and pregnancy rights advocates say the lack of appetite to shut down IVF doesn’t mean the personhood concept won’t be applied to other contexts.

Kulsoom Ijaz, senior staff attorney at Pregnancy Justice, said lawmakers around the country could use the Alabama ruling as a “building block” to strip away pregnant people’s rights.

Ijaz called fetal personhood “a radical legal doctrine” that’s being used as a “cudgel” to take away people’s dreams of having a family, especially those in marginalized groups like the LGBTQ+ community.

Broad Declarations

Broad personhood declarations in states like Louisiana, Missouri, and Utah could be interpreted to apply to other causes of action, like wrongful death, Ijaz said. She hasn’t seen them being used in the IVF context so far, but said the Supreme Court, by staying silent on the issue, added to an environment in which it could happen.

Abortion opponents are also looking at curbing contraception, Ijaz said, and the personhood doctrine has been used to expand fetal homicide prosecutions.

In Alabama, for example, criminal charges were brought against a woman shot in the stomach on the theory that she’d put her pregnancy in danger by going into a suspicious area, she said.

It’s not just Alabama, Will said. Colorado in 2008 proposed amending its constitution to declare that the term “person” applies to a human being beginning at the moment of fertilization. Voters soundly defeated that amendment, but lawmakers used similar language in a 2024 bill—which ultimately failed—to impose liability for prenatal death on any person or entity whose “wrongful act, neglect, or default” caused it, subject to existing defenses and immunities.

Louisiana law—even prior to the Alabama decision—defined “viable fertilized ovums” as legal persons and prohibited their intentional destruction, he said.

But the Tennessee Supreme Court decided in a 1992 divorce case that a dispute over whether to destroy frozen embryos should be decided according to the parties’ prior agreement and, absent such an agreement, a court should ordinarily rule in favor of the person who wants to avoid becoming a parent.

More recently, the Texas Supreme Court declined a woman’s invitation to decide if frozen embryos were children in a case where a lower court had awarded them to her ex-husband, who wanted them destroyed.

The question becomes “which activities are permissible and which should be regulated more heavily?” Will said.