Alabama’s IVF protection law redefines embryonic personhood

A process that is taking place across the country.

In this Oct. 2, 2018, file photo, containers holding frozen embryos and sperm are stored in liquid nitrogen at a fertility clinic in Fort Myers, Fla. The Alabama Supreme Court ruled on Feb. 16, 2024, that frozen embryos can be considered children under state law, a ruling critics said could have sweeping implications for fertility treatments. The decision was issued in a pair of wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic. (AP Photo/Lynne Sladky, File)

(RNS) — Shortly before the Alabama House and Senate voted to give IVF providers civil and criminal immunity in the case of lost or damaged embryos last Thursday (March 7), leaders of an array of organizations that oppose abortion sent Gov. Kay Ivey a letter begging her to veto the bill. (She didn’t.) 

“It is an indisputable scientific fact that human life begins at the moment of fertilization,” the letter declares. “The moment of fertilization, when an individual human zygote is formed, marks the starting point of each human being’s life.”

That’s true enough, but in no way dispositive (as pro-lifers like to claim) when it comes to the legal status of a fertilized egg outside (or inside) a womb, or an embryo at any stage of development for that matter.

As a matter of law, the issue is not whether a fertilized egg is a human life but whether it is considered a person. And if a person, then with the same rights and protections as a newborn? A teenager? An adult? A corporation? None of the above? These are not questions that embryological science can answer.

The Feb. 16 decision of the Alabama Supreme Court that prompted the passage of the in vitro fertilization immunity law determined that a frozen embryo is a person (a child) for purposes of civil litigation under the state’s 152-year-old Wrongful Death of a Minor Act but not for purposes of criminal prosecution. By immunizing IVF providers in both legal arenas, the new law dismisses all but the out-of-pocket cost of creating the frozen embryo to the progenitors, limiting their ability to recover for its damage or death to “compensatory damages calculated as the price paid for the impacted in vitro cycle.”

The anti-abortionists’ letter to Ivey stresses the need for greater protections for frozen embryos but is unspecific about what those protections should be, presumably because the signatories are not all on the same page regarding IVF.

Thus, Stephanie Smith, president and CEO of the conservative Alabama Policy Institute, said in a recent podcast that she supports IVF and that her organization favors legislation modeled on a 1986 Louisiana law that defines a fertilized egg as a “juridical person” unless it fails to develop over a 36-hour period. If the fertilized egg does develop (regardless of whether it is considered medically viable), it cannot be intentionally destroyed, sold or used for medical research.

(Over time, Louisiana IVF facilities have adopted the practice of shipping frozen embryos to other states, where they may be destroyed without running afoul of Louisiana law — rather like a Louisiana woman going out of state to procure an abortion.)

By contrast, Ryan T. Anderson, the Catholic president of the Washington-based Ethics and Public Policy Center, appears to disapprove of IVF per se, even as he recognizes that the political winds in America today are all in its favor. Banning IVF altogether would be the best way to protect fertilized eggs for those who adhere to Catholic doctrine, which opposes IVF as a violation of both natural law and revelation.

With respect to the former, I’ll defer to an old Jesuit friend who quips, “What do you get when you cross Tony Soprano with a natural law philosopher? Someone who makes you an offer you can’t understand.”

As for revelation, the closest the Bible comes to defining the legal status of an embryo is in the 20th chapter of the Book of Exodus, verses 22-25, which reads (in a literal translation of the Hebrew):

And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine. But if any harm follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.

The traditional scholarly consensus has been that “the fruit depart” refers to a miscarriage, making the fetus not a person but a species of property whose loss incurs a monetary payment (in modern terms, a civil remedy). The “harm” therefore refers only to the woman, with the biblical range of criminal penalties depending on the extent of her injury (up to and including death).

In recent years this interpretation has been vigorously contested, but it is effectively mirrored in English common law, which considers an embryo to be neither a human being nor a legal person. That, like the rest of common law, is the default setting for U.S. law.

But under the influence of faith-based opposition to abortion, many U.S. states have overridden the common law rule and defined embryos as legal persons. Alabama did so in 2006, amending its criminal code to include in its definition of personhood “an unborn child in utero at any stage of development, regardless of viability.”

Advocates for abortion rights argue that measures like Alabama’s IVF law are mere stopgaps and that sooner or later the issue of defining embryos as persons will need to be addressed head-on. As U.S. Rep. Chris England, a Tuscaloosa Democrat, told The New York Times last week, “We have to confront the elephant in the room.”

I’m not so sure. 

There are states that define embryos as persons from the moment of conception that permit abortions for weeks after fertilization, in cases of rape and incest, and where the life of the mother is at risk — as well as exempting women who procure abortions from criminal prosecution and immunizing IVF providers from civil and criminal liability should the embryo be destroyed.

Meanwhile, of course, the people in a series of such states have voted by large margins to permit women to obtain abortions.

This is not to say that it means nothing to define an embryo as a person. It’s to say that doing so doesn’t in itself establish what such personhood is. And as Americans in Alabama and across the country fight it out, what’s clear is that embryonic personhood will be unlike any other.

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