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Alabama Rules that Frozen Embryos Are Children

The first-of-its kind decision affirms life at its earliest stages but complicates the future of IVF.
Alabama Rules that Frozen Embryos Are Children
Image: BSIP / Universal Images Group via Getty Images

Last week, Alabama extended protections beyond the unborn in the womb to the unborn outside it, becoming the first state to rule that frozen embryos are children under the law.

The decision has elicited praise from some evangelicals who, believing life begins at conception, want to see these “snowflake babies” treated as people rather than as commodities.

It’s also complicated the future of in vitro fertilization (IVF) across the state, upsetting parents and prospective parents who have turned to the procedure. At least one hospital system has halted IVF treatments for now.

After Roe v. Wade was overturned, parts of the pro-life movement evoked the 14th Amendment, which bars depriving “any person of life, liberty, or property,” and rallied around fetal personhood laws to ban abortion and grant human rights at conception.

The move to protect embryos was anticipated by both anti-abortion and reproductive rights activists. It follows a pattern of pro-life policies in the Southern state: Alabama’s constitution protects “the rights of the unborn child,” and the state’s abortion ban went into effect after Dobbs v. Jackson Women’s Health Organization in 2022.

In a case brought by the parents of several embryos destroyed at a fertility clinic, the Alabama Supreme Court affirmed on Friday that unborn children fall under its Wrongful Death of a Minor Act, regardless of “developmental stage, physical location, or any other ancillary characteristics,” that is, even if they are stored in a freezer and have not yet been implanted.

An estimated 1.5 million embryos are on ice in the US, and fertility treatments like IVF are becoming more common. Last year, 42 percent of Americans—and 44 percent of white evangelicals—said they or someone they knew had sought fertility assistance, up from 33 percent in 2018, according to the Pew Research Center.

The ruling doesn’t ban IVF, but since the procedure often results in leftover embryos that are kept indefinitely on ice or destroyed, fertility clinics aren’t sure what the implications will be for them and their storage.

“Why is it that all of the fertility doctors in red states were freaking out after Dobbs?” Katy Faust, founder of the nonprofit Them Before Us, previously told CT. “It’s because they [may not be able] to do business there if they can’t destroy human life.”

The issue of excess embryos from IVF and the ethics of the process itself have become a bigger part of the pro-life conversation among evangelicals, including advocacy for embryo adoption.

Justice Jay Mitchell—who attends the Church of the Highlands, a multisite megachurch—wrote the majority opinion in the embryo ruling. He focused on the understanding of the word child and didn’t mention God.

“Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation,” the ruling said.

“It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

A concurring opinion from Chief Justice Tom Parker, though, relies on a biblical understanding of personhood and references Genesis, the apostle Paul, Thomas Aquinas, St. Augustine, and John Calvin. Parker—a member of Frazer Church, a Free Methodist congregation in Montgomery—concluded:

The theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) 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.

Andrew Walker, ethics and public theology professor at The Southern Baptist Theological Seminary, called the ruling “a stunning development full of moral significance.”

Republican presidential candidate Nikki Haley, who got pregnant with her son through intrauterine insemination (IUI), has referenced her fertility struggles on the campaign trail and agreed that embryos “are babies” on NBC News on Wednesday.

“One thing is to save sperm or to save eggs, but when you talk about an embryo, you are talking about—to me, that’s a life,” said Haley, whose IUI didn’t require the creation of embryos outside the body.

Haley, a Methodist who describes herself as pro-life, has emphasized the need for consensus on the federal level when it comes to abortion and sees more opportunities on the state level.

“When you see more women who are having trouble getting pregnant, and you see more women doing artificial and in vitro, those are conversations that we need to have,” she said. “But it’s also conversations where we need to have women and doctors involved in the conversation to say, ‘How do we want to handle this going forward?’”

Even before the Alabama decision, Dobbs had made it harder for IVF couples to donate embryos they opted not to implant to researchers. The Washington Post reported that Stanford University’s RENEW Biobank went from accepting embryos from 49 states to just 7—the rest require extra review in case donors violate their home state’s laws.

Catholics have historically carried more theological concerns around assisted reproduction than Protestants, though more in the pro-life movement are paying attention to the issue. Evangelical parents who desire children but struggle with infertility may opt to do IVF but limit the number of embryos created so that each can be implanted.

Despite some reservations, theologian Wayne Grudem wrote in 2019 for The Gospel Coalition that “if IVF is used by a married couple, and if care is taken to prevent the intentional destruction of embryos, then it is a morally good action that pleases God because it violates no scriptural guidelines, achieves the moral good of overcoming infertility, and brings the blessing of children to yet another family.”

Jennifer Lahl, president of The Center for Bioethics and Culture Network, has raised concerns for years about assisted reproduction. After Alabama’s decision, she pointed to Germany’s ban on freezing embryos, which has been in place since 1990.

“IVF is still legal, and the sky has not fallen,” she said. “You just can’t make a lot and freeze them, you must implant them.”

[ This article is also available in Português. ]

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