If Frozen Embryos Are Unborn Children Then What Is IVF’s Future in the United States?

by | Mar 19, 2024

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About Anne Marie Lofaso

Anne Marie Lofaso is the Arthur B. Hodges Professor of Law at West Virginia University College of Law, specializing in labor law, jurisprudence, and constitutional law. She is the Vice President of the West Virginia Advisory Committee to the United States Commission on Civil Rights. She received her D.Phil. in law from Oxford under the supervision of Sandra Fredman.

In Dobbs v Jackson Women’s Health Organization (2022), the United States Supreme Court overturned Roe v Wade(1973), and the fate of reproductive freedom fell to the political whims of state legislators. As of January 2024, 14 states have banned abortion in nearly all circumstances, judges have blocked bans in three other states, seven states have placed a gestational limit on abortions ranging from six to 12 weeks, six states have maintained their pre-Dobbs laws, and twenty states plus the District of Columbia have added additional protections. The post-Dobbs world thus created chaos. Questions such as ‘Is ectopic pregnancy treatment an unlawful abortion? and ‘Can pregnant persons be prevented from traveling out of state to have an abortion? are just the iceberg’s tip. On February 16, Alabama added a new question: whether frozen embryos are “unborn children” for purposes of Alabama’s Wrongful Death of a Minor Act, § 6-5-391, an 1872 tort statute that allows parents to recover damages for their child’s death. The Alabama Supreme Court answered in the affirmative.

In LePage v Center for Reproductive Medicine, a hospital patient wandered into the Center for Reproductive Medicine’s fertility clinic, which shares building space with the hospital. The patient entered the cryogenic storage area where extrauterine embryos are preserved indefinitely at subzero temperatures. When the patient tried to remove five embryos, the extremely low temperature freeze-burned the patient’s hand, causing the patient to drop the embryos, rendering them unviable. The embryos’ progenitors sued under § 6-5-391, which allows parents to sue “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person.”

To determine whether the progenitors had a claim under § 6-5-391 for damage to their embryos, the Court looked to Mack v Carmack (2011). In that case, the Court—relying on the state legislature’s amended definition of a “person” in the Alabama criminal code, § 13a-6-1 to include “an unborn child in utero at any stage of development, regardless of viability”—held that this amended definition applied to § 6-5-391.

Given that an unborn child in utero is a minor child for purposes of § 6-5-391, the only question left for the Court, in its view, was to resolve whether frozen embryos are unborn children. If so, then the progenitors would have a claim under § 6-5-391. The Court concluded that frozen embryos are unborn children, grounding its analysis in the meaning of the word “child.” First, the Court found that the statute’s text applies to all children without exception. Although the statute does not define “child,” the Court recognized that modern and nineteenth-century dictionaries define the term to include an “unborn or newly born human being.” The Court added that this was the natural meaning of “child” and even if the term were ambiguous, the Alabama Constitution, which protects the rights of the unborn child, “would require courts to resolve the ambiguity in favor of protecting unborn life.” The Court also grounds its conclusion on Christian ideology, asserting the truth of the assumption—“[A]n unborn child is a genetically unique human being whose life begins at fertilization and ends at death”—an assumption that has not been verified by scientific evidence and one that is not universally shared by all religious or other beliefs systems.

The Chief Justice wrote a concurring opinion in which he concluded that “any legislative (or executive) act that contravenes the sanctity of unborn life is potentially [unconstitutional].” To support this conclusion, the Chief Justice elaborated on the embryo–as–unborn–life concept, which “no party in these cases disputes,” to elaborate on the sanctity-of-the-unborn-life policy embedded in the Alabama constitution, which itself “invok[es] the favor and guidance of Almighty God.” Relying on John Keown’s, Neil Gorsuch’s, and Rev. John Sutherland Bonnell’s sanctity-of-human-life arguments; Genesis 1:27; a seventeenth-century theologian’s explanation of “the significance of man’s creation in God’s image”; Thomas Aquinas’s Summa Theologica; John Calvin’s Commentaries on the First Book of Moses Called Genesis; the Sixth Commandment; and the Geneva Bible’s commentary on Genesis 9:6, the Chief Justice concluded: “God made every person in His image” and that “each person therefore has a value that far exceeds the ability of human beings to calculate.” He also asserted that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.”

The decision would seemingly violate the Establishment Clause of the US Constitution. However, in Kennedy v Bremerton School District (2022), the US Supreme Court overruled its Lemon test – under which a state law would have violated the Constitution if it failed to have a secular purpose, its primary effect infringed on or promoted religion, or it unduly entangled government with religion – and its endorsement test, under which a law is unconstitutional if it communicates a message that the government endorses or disapproves of religion. The Kennedy Court announced that, “in place of [these] test[s],” it would interpret the Establishment Clause by “‘reference to historical practices and understandings.’” This is precisely what the Alabama Court did—even though its interpretation would have easily failed the Lemon and endorsement tests.

Accordingly, states might be able to pass Christian ideology on as public policy, a move that would affect many areas including reproductive rights. The impact of this case was immediate: IVF clinics closed, leaving many seeking infertility treatment without a course of action. The counter-reaction was astonishing: the Republican-majority state legislature passed legislation immunising IVF providers from civil and criminal liability. Yet questions, such as the law’s failure to address stored frozen embryos, have left fertility clinics and their patients concerned. The larger questions about what legal personhood for frozen embryos means for reproductive rights have only begun to surface.

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