In-Vitro Fertilization: The Next Battlefield for Defending the Sanctity of Life

 

This guest post is from Regent Law 3L Sarah Mays:

 On February 16, 2024, the Supreme Court of Alabama issued a landmark decision regarding in-vitro fertilization (“IVF”). Two couples had contracted with a fertility clinic to store their unused embryos from IVF in its cryogenic nursery. A clinic patient gained access to the cryogenic nursery, removed the embryos, and dropped them on the floor, killing them. The couples sued the clinic under a state statute for wrongful death of a minor. It had long been held that the statute applied to unborn children, but the issue presented before the court was whether the statute contained an unwritten exception to the rule for extrauterine unborn children. The court ultimately found that, given the broad language of the statute, it would not read in such an exception and the families could sue the clinic for wrongful death of a minor. This finding is consistent with the Alabama Constitution. Article I § 36.06, the sanctity of unborn life, states that Alabama acknowledges, declares, and affirms that it is the public policy of the state to “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life” and “ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.”

The decision also raised an important point regarding consistency on how an embryo is viewed. During oral argument, the defendants suggested the plaintiffs may be contractually or equitably barred from pursuing a wrongful-death claim because the plaintiffs signed contracts that, in many respects, treated the embryos as property, not as unborn children. For example, they agreed to destroy the leftover embryos or donate them for medical research, which would ultimately result in their destruction, if they remained frozen for longer than five years. This issue was not briefed or argued at the trial level, so the state supreme court could not consider it, but the opinion stated that “[i]f the defendants are correct on that point, then they may be able to invoke waiver, estoppel, or similar affirmative defenses.” It was left to the trial court to potentially consider on remand.

The application of this decision is very limited, despite national headlines claiming otherwise. In-vitro fertilization is not illegal, but the case raises the question of if it should be. In my experience, many people have not thought of the moral and ethical implications of IVF, or they get uncomfortable discussing it, because they have great compassion for those going through the process to try and have biological children. We should have compassion for those struggling with infertility, but these conversations need to be had. From a Christian perspective, if you truly believe that life begins at conception and we are all made in the image of God, then that naturally and logically extends to babies made in petri dishes outside of the womb just as much as it applies to those made inside the womb. The Alabama Supreme Court recognized the importance of this consistency by acknowledging that the couples may be estopped from pursuing a wrongful-death claim because they had previously treated the embryos as property.

Generally, with IVF, many eggs are retrieved, many of those eggs are fertilized to create embryos, and several of those embryos will be implanted in the woman’s uterus at a time to maximize the chances of success. CDC data from 2020 shows that for women under 35 years old, 47.2% of IVF cycles resulted in the birth of a single baby. Women ages 35-37 had a 34.6% success rate, and women ages 38-40 had a 22.1% success rate. Experts estimate that over 12 million babies worldwide have been born via IVF since 1978. There is also an estimated 600,000 leftover frozen embryos in the United States alone. Think of the number of embryos that have been intentionally created and then ultimately destroyed, unsuccessfully implanted, or indefinitely frozen in the process of a family desperately seeking to have a biological child. Each one of those embryos is a human life, made in the image of God, but they are typically treated as property in the eyes of the law. While many do not want to acknowledge that, it is the truth, and the Alabama Supreme Court has taken the brave first step in starting a national conversation on the morality of IVF and the sanctity of all unborn life by deciding that a family could sue under wrongful death of a minor for the destruction of a frozen embryo.