Alabama IVF Law Doesn’t Solve Questions About Embryo Personhood

The Alabama Supreme Court opinion last month recognizing embryos as unborn children caused the state’s legislature to spring to action to protect fertility clinics from liability. Many of them immediately shuttered after the opinion. But this action only skims the surface of ethical and legal quandaries policymakers will have to wrestle with as the personhood movement gains steam.

The court’s Feb. 16 ruling held that embryos created during the IVF process are unborn children and their destruction implicates the state’s Wrongful Death of a Minor Act. Responding to calls from all sides, the Alabama legislature intervened to approve emergency legislation that would provide civil and criminal immunity to providers of IVF services.

Signing the bill into law March 6, Gov. Kay Ivey (R-AL) acknowledged it was a “short-term measure” intended to allow IVF clinics to resume operations. Legislation was also proposed at the federal level to protect access to IVF services, though Sen. Cindy Hyde-Smith (R-Miss.) blocked the bill.

These debates are just beginning or, more accurately, are just being revived. There are far-reaching implications of the position that the rights associated with legal personhood attach at the earliest stages of development. Legal personhood at fertilization affects reproductive technologies and certain forms of contraception.

For instance, there’s inherent risk with the freezing and thawing of embryos common in IVF. Removing a cell from the embryo to perform genetic screening could cause damage or make the embryo unsuitable for a subsequent transfer procedure. The transfer process itself is tremendously risky for these embryonic children. A successful round of IVF may see three embryos transferred, but only one resulting in a live birth (a 66% fatality rate).

And these risks could be realized even if technicians aren’t negligent in their duties. Rep. Ernie Yarbrough (R-AL) spoke against the emergency measures in Alabama, calling destruction of frozen embryos during the IVF process a “silent holocaust going on in our state.”

But does this inherent risk mean IVF should be outlawed or even heavily restricted? The question is complicated. After all, parents are frequently called to make medical decisions that expose their children to risk of loss of life. And driving children in a car is one of the riskiest things parents can ever expose their children to and it happens every day.

In addition, during natural reproductive processes, as many as 50% of fertilized ova are expelled from a woman’s body before she would ever have reason to know that an embryonic child came into existence. In that regard, human reproduction itself could be considered a deadly business.

Identifying risk doesn’t end the inquiry. It’s a question of balancing the benefits associated with a given activity against the level of risk society is willing to accept. And the legal status assigned to embryos, the strength of the state interest asserted in protecting them, and the state’s interest in facilitating more births through IVF will play an important role in the types of regulations imposed.

How might the risk/benefit assessment look if an embryo is considered to have the same legal status as a born individual, and thus, the state’s interest in preserving the life of that embryo is equal to its interest in protecting born children? Here are some preliminary thoughts for legislatures considering these issues.

Proponents of embryonic personhood who nonetheless favor protecting IVF services often speak in terms of helping families have children. This, they think, allows them to be consistent in their anti-abortion views, while supporting access to reproductive technologies that expose embryonic children to inherent risk of loss of life.

After all, abortion intentionally destroys life, whereas IVF has the intended beneficial purpose of producing born children even if there is an unintended negative consequence of losing life along the way. This argument is reminiscent of the principle of double effect attributable to Thomas Aquinas in the 13th century and invoked by the US Supreme Court as recently as 1997 in the context of end-of-life decision-making.

But there is further nuance to contemplate. Those favoring embryonic personhood are also frequently unwilling to make qualitative assessments about value of human life. In other words, all human life is intrinsically valuable without regard to intelligence, disability, or other status.

But if that’s the case, what benefit of born existence would justify the risk of death inherent in IVF? By analogy, if sentient existence is no more valuable than embryonic existence, would the benefit of education be worth it if the drive to school carried a 66% risk of death? Or would we value and protect our children in their less-educated state by requiring them to remain safely at home?

Of course, considering embryos to be children is not the only option. States could assert an interest in protecting embryos not because of what they currently are, but because of what they have potential to become—whether at birth or even sometime sooner. Up until the eight-cell stage of development, each individual cell within the embryo has potential to become an entirely separate human being. This challenges the notion that a unique member of the human species exists as soon as the sperm enters the egg.

What’s more, until the emergence of the primitive streak in the early nervous system—roughly two weeks after fertilization—successful twinning could lead to multiple live births. Prior to the emergence of the primitive streak, one could argue that while there’s potential for human life at its earliest stages of development, there isn’t yet an identifiable member of the species.

These biological realities could be important in how a state assesses the level of risk that is acceptable: risk of loss of potential human life versus risk of loss of actual human life. A state may choose to permit but regulate IVF to minimize the risk of loss of potential life whereas it might prohibit the activity altogether if the risk is considered to be to actual life.

These complicated issues aren’t easily addressed. But one hopes the politicians writing future laws will take them into consideration.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jonathan F. Will is professor of law and director of the Bioethics & Health Law Center at Mississippi College School of Law.

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