The Fight Over I.V.F. Is Only Beginning

In the two and a half weeks since the Supreme Court of Alabama issued its startling decision in LePage v. Center for Reproductive Medicine, which endorsed legal personhood for frozen embryos created by in-vitro fertilization, Republican politicians have scrambled to contain the fallout. Although the ruling is the result of pro-life activism that the Party has fuelled for decades, I.V.F. is popular with Republican voters. “We want to make it easier for mothers and fathers to have babies, not harder,” Donald Trump posted on Truth Social after the ruling came down. Mike Johnson, the Speaker of the House, made a statement in praise of I.V.F., even though he is one of a hundred and twenty-four Republican co-sponsors of the Life at Conception Act, which proposes that “the right to life guaranteed by the Constitution is vested in each human being at all stages of life, including the moment of fertilization.” Meanwhile, in Alabama, some clinics paused treatments as they examined their legal liability, and Kay Ivey, the state’s Republican governor, encouraged the state legislature to draft a bill that would effectively sidestep the decision in LePage. I.V.F., Ivey said, helps “to foster a culture of life.” On Thursday, the Alabama legislature advanced a bill that would grant fertility clinics “civil and criminal immunity for death or damage to an embryo.”

LePage v. Center for Reproductive Medicine was brought by three couples against their I.V.F. clinic, which was accused of negligence in storing their embryos. A patient at the hospital where the embryos were housed wandered into the storage area, grabbed the embryos, and, having sustained freezer burns to their hands, dropped them on the floor. The plaintiffs brought claims under Alabama’s Wrongful Death of Minor statute—even though, as the Alabama Supreme Court noted in its decision, each of the couples had made contractual provisions for destroying the embryos electively. (One couple agreed to dispose of any embryos that were unused after five years, and the other two arranged for leftover embryos to be donated to medical research.) If life begins at conception—and, in the chambers of Alabama’s highest court, it does—then any end of such a life is wrongful, even if a parent consents to it. The Alabama opinion implicitly rebukes the plaintiffs even as it decides in their favor.

In other respects, too, LePage is a curious text: a genre-bending mix of dry legal document, speculative fiction, and evangelical-Christian sermon. The justices agreed that Alabama’s Wrongful Death of a Minor Act, which dates back to 1872, should apply to “extrauterine children—that is, unborn children who are located outside of a biological uterus at the time they are killed.” According to the justices, blastocysts consisting of about a hundred cells and stored at subzero temperatures are “little people” who reside in a “cryogenic nursery.” If the court did not recognize frozen embryos as children, one of the justices explained, it could lead to a dystopian future in which an “infant or toddler” who has developed entirely in an artificial womb would have no protections under the law. Chief Justice Tom Parker, in a concurrence, affirmed that “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.” Parker cited Genesis, the Book of Jeremiah, the Sixth Commandment, and Thomas Aquinas in his opinion.

The decision is, above all, a document made more feasible by Dobbs v. Jackson Women’s Health Organization, the 2022 Supreme Court ruling that abolished the constitutional right to abortion, in which Justice Samuel Alito repeatedly invoked the figure of the “unborn human being.” “No matter how numbed we might have become to the overturning of Roe v. Wade, it is a salutary shock to the senses to see the religious language that flows freely through a state Supreme Court opinion,” Leslie Meltzer Henry, a faculty member at the Johns Hopkins Berman Institute of Bioethics and a professor at the University of Maryland Carey School of Law, told me. “This is the ascendancy of a Christian legal movement that has continued to gain ground in the post-Dobbs space.” And anti-abortion extremists are indeed ecstatic about the decision. A senior counsel for the right-wing Christian legal organization Alliance Defending Freedom, which was instrumental in overturning Roe v. Wade, and which has anti-abortion lawsuits pending in multiple states, said that the Alabama court had scored “a tremendous victory for life.”

Governor Ivey and others are struggling to reconcile two seemingly conflicting views: that, on the one hand, human life begins at conception; and that, on the other, I.V.F. is a social good—even though the procedure, as currently practiced in the U.S., routinely produces embryos that are eventually abandoned, destroyed, or donated to medical research. (Over all, more than three-quarters of embryos that are implanted through I.V.F. do not result in a live birth. It is estimated that at least a million embryos are in frozen storage across the U.S.) “While there are a lot of people within the anti-abortion movement who are looking to establish fetal personhood—meaning that an embryo would have the same rights as a person under the Fourteenth Amendment—assisted reproduction is generally viewed positively by both Republicans and Democrats and everyone in between,” Seema Mohapatra, a professor of health law at Southern Methodist University, said.

If Republicans in Congress and state legislatures now have to make a careful political calculation about I.V.F.—to recognize its popularity while also maintaining their anti-abortion bona fides—it may result in higher costs for people facing infertility. For instance, some states may adopt laws similar to those which govern I.V.F. in a place like Italy, where the legal system is heavily influenced by Catholic teachings. There, physicians can create a maximum of three embryos per cycle, all of which have to be implanted in the patient, even if that leads to a high-risk triplet pregnancy. Italy also bans most cryogenic preservation of embryos and places heavy restrictions on genetic testing of them. Fewer embryos and less genetic testing lead to fewer successful pregnancies, which necessitate more cycles of treatment, involving high doses of hormone-stimulating drugs and egg retrieval under sedation. In addition to being physically and emotionally gruelling, this process, in the U.S., can cost thirty thousand dollars out of pocket, per cycle. Fewer than half of U.S. states mandate insurance coverage of I.V.F., and Medicaid in most states doesn’t cover I.V.F. at all.

“I could see restrictions being put in place to minimize embryo destruction in ways that will make I.V.F. more expensive,” Katherine Kraschel, an assistant professor of law and health sciences at Northeastern University’s School of Law, told me. Kraschel noted that I.V.F. patients are largely white and affluent, and that a lot of private-equity money is pouring into the fertility industry. In her view, although many Republican politicians want to insure that I.V.F. remains available, they do not care about making sure that it’s affordable for everyone. Yet, in drafting its new I.V.F. bill, the Alabama legislature rejected a proposed amendment from a Republican member that would have barred fertility clinics from destroying unused embryos. Kraschel pointed out that even states with near-total abortion bans are careful to specify that they apply only to in-utero pregnancies: “They’ll say, ‘Life begins at fertilization,’ but that’s not really what it’s about. It’s about constraining people’s decision-making once they have something in their body.”

Kimberly Mutcherson, a professor at Rutgers Law School, told me, “It’s a little surprising that you’d have more rights over an embryo when it’s not in your body than when you do. You would think it would be the exact opposite.” She went on, “A consistent problem with how we think about abortion and assisted reproduction in this country is that we treat them as if they are two totally different areas of medicine and law. But, on both sides, what you’re dealing with is pregnancy, with deeply personal and private choices.”

The fertility industry in the U.S. is under-regulated, largely self-policing, and riddled with human error. Embryos have been lost in transit and exposed to mad cow disease. Parents have birthed children created with the wrong sperm or egg, or with catastrophic health challenges that should have been caught during genetic screening. In 2019, two women in California unwittingly gave birth to one another’s babies. In December, a couple in New York reached a settlement with the fertility clinic that implanted another couple’s twins in them; they had to hand the babies over to the biological parents eight months after birth, and they may never know what happened to their own embryos.

Bizarre mishaps such as the one that prompted the Alabama lawsuit might seem intuitively worthy of recompense. But there is often surprisingly little recourse for victims of what the law professor Dov Fox calls “reproductive negligence,” because, Fox has written, “in the absence of property loss or physical injury, existing law provides little basis to recognize disrupted family planning as a harm worthy of protection.” Kraschel told me, “Even if we can agree that there is a harm that’s worthy of some recompense, the law really struggles to place a dollar value on that loss.” The difficulty comes partly down to the unique circumstances of each parent and the intangible, hypothetical nature of the harm that they’ve sustained. “Did the plaintiffs plan to have more children? If so, how old are they? Are they going to be able to produce additional eggs? What is the value of lost fertility?” Kraschel went on. “I don’t think these are necessarily decisions we want courts to be making, because it’s all so subjective.”

The existential subjectivity of the frozen embryo is perhaps most acute during divorce proceedings. Judges in these cases have ordered embryos destroyed or divvied them up. Often, if the ex-couple disagrees on their embryos’ fate, judges tend to side with the party that does not want them to be brought to term, although there are exceptions; in Arizona, custody of embryos usually defaults to the person who wants them to be implanted. Last year, in Virginia, a judge cited a nineteenth-century slavery law in his decision to permit disputed embryos to be divided up as marital property. Some of the most wrenching cases have concerned divorced women who have undergone chemotherapy and whose disputed embryos are undoubtedly their last chance for biological children. “Any business that is about making human beings is going to create all sorts of legal and ethical dilemmas,” Mutcherson said. “When people are fighting over embryos, it becomes very difficult, because you’re trying to figure out, Are they people? Are they quasi-people? Are they property? What are we even talking about here?”

These ambiguities create an opening for the fetal-personhood movement, which views the embryo’s humanity as an objective fact. If Alabama or any other state was to codify that frozen embryos created through I.V.F. do not have Fourteenth Amendment protections, Kraschel said, “a supporter of fetal personhood might call this a violation of the equal-protection clause, because you’re treating them differently due to an immutable characteristic of how they were conceived, meaning via I.V.F.” Some experts anticipate that an I.V.F. case not entirely dissimilar to the one in Alabama could reach the U.S. Supreme Court. Kraschel spun a hypothetical example in which a divorcing couple is fighting over their frozen embryos: one wants to destroy or donate them, but the other wants more children. The latter parent could argue, “These are children, and I want to have a baby with them, and you want to throw them away, and in the best interest of the child I should get them,” Kraschel said.

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