A February 16 ruling of the Alabama Supreme Court in the US, which said frozen embryos are akin to children, has raised questions on in-vitro fertilisation (IVF) in the political battle over reproductive rights in the country.
In US politics, the debate over abortion is framed in terms of positions such as “pro-choice” and “pro-life”. The Democratic party has largely supported people’s right to abortion, while the Republican party has opposed it over the rights of the unborn child.
Republicans are now grappling with expressing their support for IVF, which has helped in the birth of millions of children. However, their pro-life stance is based on the same underlying premise as the Alabama top court’s decision – that unborn children also have the right to life.
A new law was brought in earlier this month to deal with the ruling. What exactly does it say, and how is it impacting the country and its politics?
First, what is IVF, and how did the Alabama SC rule on it?
IVF includes a range of procedures, through which a woman’s mature egg cells are removed from her body and fertilised with a male sperm cell. Then, implantation of the fertilised cell or the zygote happens in the mother or the surrogate woman’s uterus for pregnancy to begin.
It is often used as a treatment for infertility and to prevent the passing on of genetic health conditions to children.
On February 16, a nine-judge bench of the Alabama SC held in a majority ruling (‘LePage v. Center for Reproductive Medicine’) that under Alabama’s Wrongful Death of a Minor Act, a “child” includes those who are unborn, irrespective of being located inside or outside a biological uterus. It further held that people can be held liable for destroying embryos.
The court was acting on a plea filed by three couples undergoing IVF treatment at an Alabama fertility clinic. Although their IVF-created embryos were stored at the clinic, an incident occurred where a patient entered the cryogenic nursery and removed several embryos, leading to their “deaths”.
Subsequently, the parents sued the clinic under Alabama’s Wrongful Death of a Minor Act and for negligence.
What does Alabama’s Wrongful Death of a Minor Act say?
Passed in 1872, the Act allows parents or legal representatives of a “minor child” the private right of action against persons whose “wrongful act, omission, or negligence” caused their child’s death.
However, the Act stopped short of defining what a “child” or a “minor child is”, leaving room for court’s interpretation.
This first-of-its-kind ruling comes at a time when 11 US states have broadly defined personhood in their state laws as beginning at the fertilisation stage. Additional abortion and reproductive restrictions are being considered ahead of the 2024 elections, The Washington Post reported.
Also, the 2022 ruling in ‘Dobbs v. Jackson’ could complicate matters further. In ‘Dobbs’, the Supreme Court of the United States overturned the landmark 1973 ruling in ‘Roe v. Wade’, and held that the US Constitution does not confer the right to abortion. The issue was to be decided at the level of the states instead.
Further, it said states have a legitimate interest in protecting prenatal life at all stages of development, resulting in speculation that IVF procedures could be regulated. Major IVF clinics paused treatments due to possible civil and criminal liability concerns that might ensue for their patients and physicians alike.
What is the conundrum for Republicans now?
According to NPR, the Republican party has advised candidates running for office to “clearly state [their] support for IVF” and “publicly oppose any efforts to restrict access” to it. Former President Donald Trump, who is likely to be the Republican candidate, said in a social media post: “I strongly support the availability of IVF for couples who are trying to have a precious baby.”
The paradox of the Republican approach to IVF is that on one hand, many Republican legislators have strongly advocated a pro-life approach, arguing that life begins at conception and thus abortion is ethically wrong.
However, by supporting IVF procedures, they are now contravening the Alabama SC decision. Based on the same pro-life premise, the Alabama Supreme Court ruling now threatens access to IVF in the state.
For instance, Kansas Senator Roger Marshall told NPR that “there’s nothing more pro-family than supporting the birth of babies” and that 200 babies are born daily because of IVF in the country.
Joanne Rosen, an expert in reproductive law, told the Johns Hopkins Bloomberg School of Public Health that IVF procedures contain “a very small possibility” of destroying or damaging embryos. It could happen at the stage when frozen embryos are thawed and prepared for transfer, and this could now result in legal consequences.
Republican senator Marco Rubio said, “The ethical dilemma that this poses is, in order to create life, you have to destroy life because you’ll create embryos that are not going to be used.”
In an attempt to resolve the conundrum, Alabama’s Republican Governor Kay Ivey signed a Bill into law on March 6, on protecting doctors and IVF providers from potential legal liabilities raised by the Alabama SC ruling.
What does the new law do?
The now-enacted law shields IVF providers from legal liability without addressing the larger questions posed by the court’s decision.
It protects providers from prosecution and civil lawsuits “for the damage to or death of an embryo” during IVF services. Although civil lawsuits can still be pursued against IVF-related goods manufacturers, such as those providing nutrient-rich solutions used to grow embryos, damages will be “capped” to the price paid for the impacted in-vitro cycle, Associated Press reported.
A day after the law came into effect, The New York Times reported that at least one major clinic had resumed embryo transfers.
