On February 16 the Alabama Supreme Court brought fertility care in that state to a screeching halt—and started a national conversation—by declaring that frozen embryos were people in the eyes of the law. In support of its decision, the court cited a 19th-century Alabama statute, the state’s constitution and, in a memorable concurrence from Chief Justice Tom Parker, the words of God to the prophet Jeremiah: “Before I formed you in the womb I knew you. Before you were born I sanctified you.”
The facts of the case, though sketchy, are not in dispute: in 2020 a patient in an Alabama hospital wandered through an unlocked door into an in vitro fertilization (IVF) lab, withdrew frozen embryos from a freezer and then dropped them because they were cold. Naturally, couples whose embryos were destroyed were distraught and wanted compensation. But the nature of that compensation raised complex questions about the legal status of embryos, which cannot be comfortably categorized as either people or property.
What appears radical about the Alabama Supreme Court is its insistence that the situation is not complicated at all. On the contrary, the Court insisted in its ruling, it’s all quite simple: these were “extrauterine children” living in a “cryogenic nursery.” And while the Court’s vocabulary may be startling, it is in fact centering an argument that antiabortion advocates have been making for decades: personhood begins at conception.
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The fact that personhood is antithetical to the practice of IVF is a conundrum that has been variously embraced, denied and ignored by personhood adherents. Alabama’s court wasn’t breaking new ground: Sonia Suter, a professor of law at The George Washington University, points out that personhood has been a part of the political and legal strategy for antiabortion forces since the 1960s. In pointing out that the logic of personhood applies to frozen embryos, the court was, in effect, saying the quiet part out loud. The decision acknowledges as much, noting that the resulting “undesirable public policy outcomes” are a question for the legislature, “not this Court.”
By all measures, IVF is very popular, even among those who identify as religious or politically on the right. The question that rises in the wake of the Alabama decision is whether that popularity alone will suffice to safeguard the right to fertility care. IVF has largely been exempted, often explicitly, from even the most personhood-friendly restrictions on abortion care in the post-Dobbs era. For example, Indiana’s 2022 abortion law declares that human life begins when “a human ovum is fertilized by a human sperm,” then adds that the statute “does not apply to in vitro fertilization.” Others offer wiggle room, such as the Idaho abortion law that says that pregnancy refers to “the reproductive condition of having a developing fetus in the body and commences with fertilization.” Still others use personhood language but define personhood as the result of fertilization plus implantation in the uterus.
The fact that personhood cannot be reconciled with these semantic contortions has become a sticking point for both sides. The American Society for Reproductive Medicine (ASRM) has pursued these carve outs to protect IVF from the larger abortion debate. Yet Rebecca O’Connor, director of the ASRM Center for Policy and Leadership, says that the industry clearly understands that carve outs are not enough. Trying to protect Americans’ right to fertility care without addressing personhood, O’Connor says, “leaves a giant hole you can drive a Mack truck through.”
Work-arounds that protect IVF are expedient but not necessarily acceptable to those who take personhood language both seriously and literally. Under pressure, Alabama state legislators have come up with a quick, bipartisan fix that protects IVF providers from civil or criminal liability. The bill's sponsor, Alabama state senator Tim Melson, told reporters that “hopefully we’ll open up back IVF clinics and get the process going for these ladies to be successful in their treatment.” But a coalition of antiabortion groups in the state has raised strenuous objections, calling the bill “unacceptable." And while the Alabama Supreme Court decision itself solicited guidance from legislators on the issue, it’s not entirely clear that the law will be upheld, given the court’s embrace of personhood language. In Parker’s concurrence, he noted that the legislature can do what it likes, “provided that it comports with the Alabama Constitution, including the Sanctity of Unborn Life Amendment.”
Despite IVF’s popularity, there’s evidence that, for many in the antiabortion movement, restricting it is a feature, not a bug, of the embryos-are-people argument. A ProPublica investigation published in November 2022 reported on a call between antiabortion advocates and Tennessee legislators in which they discussed how to manage the negative reaction to all the ancillary effects of an antiabortion law that defined the life of an unborn child as beginning at fertilization. When asked about IVF, one of the advocates suggested tactical delay, implying there would be a more propitious moment to introduce new regulation. “I don’t think that that’s the conversation that you need to have now,” he clarified.
Intentionally or not, the implications of personhood language for IVF are existential, a point driven home when multiple Alabama fertility centers paused in creating or transferring embryos within days of the decision. The new law passed by the Alabama legislature offers some protection from civil and criminal liability for doctors, lab technicians and anyone else who handles embryos. But it is unclear just how much. As Suter points out, liability could be an issue for prospective parents, who could also be sued for wrongful death—a point that was not addressed in the court’s decision or the bill just passed by Alabama’s house and senate. “You could imagine one parent against another, maybe a grandparent who says, ‘Oh, you know, I can't believe he destroyed my grandkids,’” Suter says.
There is also the possibility of criminal liability, something the Alabama Supreme Court did not discuss and therefore did not rule out. Alabama’s attorney general Steve Marshall—the same official who recently made news by threatening to prosecute women who leave the state for abortion care—has said that he does not intend to prosecute IVF providers or families. But hypothetically, Suter asserts, “any criminal or civil statute in Alabama could be applied to harmful treatment of embryos.”
What would that mean for IVF? In its recent statement, the coalition of antiabortion organization Susan B. Anthony Pro-Life America, suggested that fertility medicine can both “allow the continued practice of IVF with care for those suffering from infertility and respect life created through IVF.” The text of Parker’s concurrence claims to identify other countries that have found a way to protect embryos while performing IVF. Parker stated that in Australia and New Zealand, “prevailing ethical standards dictate that physicians usually make only one embryo at a time,” a fact that is going to come as a great shock to Australia and New Zealand, where, like everywhere else in the world, IVF practice includes ovarian stimulation to create multiple eggs and multiple embryos. Parker also mentioned that Italy has banned most cryopreservation of embryos, neglecting to add that this 2004 ban was rescinded five years later because it proved to be incompatible with ethical practice.
The claim that IVF could be implemented in a way that is compatible with personhood laws is “disingenuous at best,“ O’Connor says. Routine practices in IVF optimize outcomes—successful pregnancies—at the expense of individual embryos because, as David Albertini, editor in chief of the Journal of Assisted Reproduction and Genetics, points out, the majority of IVF cycles are doomed to fail. Making multiple embryos is standard practice because making them one at a time, cycle after cycle, would radically increase the physical and financial burden associated with IVF.
New forms of testing that improve our ability to identify which embryos are likely to result in pregnancy have greatly increased the number of cycles where only a single embryo is transferred into the uterus, resulting in fewer twins, triplets or even higher-order multiples. But these tests do not protect the “personhood” of individual embryos—they are used to select which embryos to transfer and, by extension, which embryos to discard. The same logic goes for testing an embryo to avoid passing down conditions such as sickle cell anemia or spinal muscular atrophy. Would it even be legal to select against one on those grounds if embryos are people? “That’s discrimination!” Suter says.
Treating embryos as people would have wide-ranging consequences for practitioners, patients and the state. How should Alabama handle frozen embryos that are abandoned by their parents—a likely outcome if the law requires that parents pay indefinitely to cover the costs of embryos that were left over after IVF. Will the state be liable for tuition at these “cryogenic nurseries”? Will it be liable for the care of the embryos, and what would responsible care of a frozen person look like? Would the state need to hire surrogates and find them homes?
These hypotheticals sound extreme but no more so than the extreme hypotheticals that have been embraced by adherents of personhood language. After Georgia passed a personhood amendment, one of many states to do so, skeptics scoffed that people ought to be allowed to deduct fetuses on their taxes—and an amendment was added to the tax code. The Alabama decision itself argues that if you have rules that apply only during pregnancy and rules that apply only after birth, then a fetus in the birth canal would have no protections at all because, like some sort of Schrödinger’s baby, it was neither born nor unborn. The decision also states that to make pregnancy a requirement for personhood means that “even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a ‘child’ or ‘person’” because they had never been in a uterus and never been born.
While some people might contend that this hypothetical demonstrates the absurdity of refusing to recognize the clear differences between embryos and toddlers, adherence on principle to the belief that embryos are people forced the court to instead redefine pregnancy as a stay in the uterus rather than a developmental process. The outlandishness is built into the notion of personhood. The Alabama decision was shocking and yet, legal experts point out, should not have come as a surprise. As the reproductive rights advocacy organization Pregnancy Justice said in a 2022 report, “Fetal personhood promoters or skeptics alike might claim these possibilities are far-fetched law school hypotheticals, an absurd faux-Pandora’s Box or slippery slope, but if the present reality of pregnancy criminalization and abortion restrictions shows anything, it is that seemingly far-fetched possibilities too easily become reality.”The Alabama decision has created “an inflection point,” O’Connor says. “Attention is being brought to the need for Americans [to] have access to equitable and seamless reproductive medicine and particularly infertility treatments.” For ASRM, the hope is that this attention will help Congress pass a bill, reintroduced in January by Senator Tammy Duckworth of Illinois, to protect providers and codify people’s right to access such fertility care. Albertini believes that the industry may benefit from the current crisis as well. “Now, all of a sudden..., everybody on the right is [saying], ‘Of course I support IVF because I want that cute little baby in the hands of those families who desire this,’” he says. Still, there is also a note of caution. Regulatory action affecting IVF is now more likely, but that’s a sword that cuts both ways. O’Connor expresses concern about potential restrictions on practice written by “people ... that clearly have no idea what is actually occurring in a lab.”
Industry insiders are concerned that decisions like the one from the Alabama Supreme Court will not alter the practice of IVF but may affect who has access to it. IVF is already out of reach for many people because of cost. Limiting the number of embryos that can be made or frozen would drive up those costs for patients by requiring multiple rounds to try to achieve a pregnancy. Clinics may find it easier to operate in states where they do not have to negotiate legal minefields. Closing IVF centers in regions where civil or criminal liability is an issue would further limit access. “People are going to IV-exit in states like Alabama,” O’Connor says. “I’ve already seen as much.”
Ultimately, personhood language embedded in case law and statutes remains a wildcard that can threaten IVF. Will carve outs be enough to protect fertility care? Melissa Murray, a professor of law at New York University, says that it is “problematic to the extent that it depends on the will of the legislatures.” What’s more, she adds, “carveouts for IVF do not address the central question of whether fetuses, embryos, etcetera, are people with rights.” And that’s a question that may make its way to the U.S. Supreme Court. Murray, a noted Constitutional Law scholar who co-hosts the Court-watching podcast Strict Scrutiny, warns that the language in the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization “definitely indicated that the Court would likely be receptive to such arguments if they were to eventually surface.”