Alabama dives headfirst down the IVF rabbit hole

February 22nd, 2024 by Tom Lynch

“Disbelief, denial, all the stages of grief. … I was stunned.” — Dr. Michael C. Allemand, a reproductive endocrinologist at Alabama Fertility, which provides IVF services.

I hold a seed in the palm of my hand. It’s a Sunflower seed. Is the seed a Sunflower? Or, is it just a seed that, were I to plant it, water it, throw in the Miracle Grow, might (probably not, knowing me) turn into an actual Sunflower?

That seed is ready to grow. If I do everything right, it should rise and grow into a beautiful Sunflower, the kind Vincent van Gogh used to paint. But, looking at my palm, I don’t see a Sunflower; I see a seed.

But according to the logic behind an Alabama Supreme Court decision announced last Friday, I should not be calling my seed a seed; I should be calling it a Sunflower.

Last Friday, the Alabama Supreme Court ruled on a case brought by three couples over the accidental destruction of extra embryos they had frozen in their efforts to have children. The couples had successfully sought IVF treatment at a fertility clinic operated by the Center for Reproductive Medicine in Birmingham, Alabama. But, as in most IVF treatments, there were extra embryos, which had not been used in the successful treatments. Those were stored at a local hospital. In 2020, the hospital suffered a security breach when a, presumably unbalanced, patient got into the restricted area where the embryos were stored, extracted them from their containers, and dropped them after they burned the patient’s hand. This caused their destruction.

Instead of suing the hospital for negligence, the three couples sued under Alabama’s Wrongful Death of a Minor Act, which allows parents of a deceased child to recover punitive damages for their child’s death. Maybe it was all about the money?¹

Regardless, the very first paragraph of the Alabama Supreme Court’s decision reads:

This Court has long held that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, a statute that allows parents of a deceased child to recover punitive damages for their child’s death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.

In his majority opinion, Justice Jay Mitchell wrote, “all members of this Court agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.” Embryos may be “genetically unique,” but there is no scientific data to support a legal assertion that they are human beings.

At another rather fanciful point in his decision, Mitchell writes that considering a frozen embryo a “child” is a “natural, ordinary, commonly understood meaning” of the word. Commonly understood by whom, if you please?

On page 12 of his decision, Mitchell writes: “the ordinary meaning of “child” includes children who have not yet been born. ‘This Court’s most cited dictionary defines ‘child’ as ‘an unborn or recently born person.'” And, sure enough, if you head over to Merriam-Webster’s unabridged dictionary you find the meaning of “child” as “1. aan unborn or recently born human being.” 

I would like to have a conversation with the person at M-W who came up with that definition of “child.” I would like to show him or her my Sunflower seed.

The decision takes a weirder and even more biblically Christian turn in Alabama Chief Justice Tom Parker’s concurring opinion in which he writes the decision is grounded in the “theologically based view of the sanctity of life.” Frozen embryos must be considered children, according to Parker, because “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.”

He also wrote in his scripture-draped concurring opinion, “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

Parker’s opinion could have been written by Jerry Falwell.

What exactly happens in IVF? According to the Mayo Clinic’s explanation, “a woman’s extracted egg is fertilized by injecting a single sperm into it, or mixing the egg with sperm in a petri dish.” It is then a fertilized egg and is called an embryo. According to Alabama’s Supreme Court, it is also called a “child.”

In  his prescient dissent, Justice Greg Cook, clearly seeing where this is going, wrote:

The main opinion’s holding will mean that the creation of frozen embryos will end in Alabama. No rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.

And this is exactly what happened yesterday, when the fertility clinic at the University of Alabama at Birmingham, the biggest in the state, announced it has stopped offering IVF treatments. Other clinics will certainly follow. If nothing changes, and the only way it could, as Justice Mitchell’s decision makes plain, is by the Alabama legislature doing something it most certainly does not want to do — passing legislation declaring embryos are not children — this could spread to other states. Already, in today’s Boston Globe, IVF clinicians are voicing alarm at what could be a disastrous future for them and the patients they serve. “This changes the whole dynamic for how you help overcome infertility,” said Dr. Pietro Bortoletto, director of reproductive surgery at Boston IVF Fertility Clinic. “This feels like a big wake up call for infertility doctors everywhere.”

The Alabama decision is a knife through the heart of all of its citizens desperate to have children, but unable to do so without IVF. The Associated Press printed interviews with some today. The people interviewed were heartbroken.

The majority’s opinion clearly says the Justices got their marching orders from the U. S. Supreme Courts decision in Dobbs, which overruled Roe vs. Wade, the landmark 1973 decision that opened the door to legal abortion in America.

I cannot help thinking this unforeseen affair is one of the most striking examples of “The law of unintended consequences” I have ever seen.

Or, is it? The battle over frozen embryos has been going on since the George W. Bush Administration, and, while most of America thought the battle over, many just waited for a moment like this to take up the cause again.

And smack dab into the middle of all this drops Donald Trump, who, in one of fate’s stranger twists, is scheduled to address the annual convention of the National Religious Broadcasters (NRB) Association tonight at 8:00pm in Nashville, Tennessee.

The NRB, composed of evangelical broadcasters across America, claims 141 million Americans “watch or listen to Christian broadcasting every month,” and that there are “4000+ active Christian radio and televisions stations in the United States.”

In its Statements of Religious Beliefs, the NRB clearly shows its support for and agreement with the decision of the Alabama Supreme Court:

From the moment of fertilization until natural death, every human life is sacred because every human life has been created by God, in His image and likeness.

From the moment of fertilization, every human life must be recognized, respected, and protected as having the rights of a person and the inviolable right to life.

The right to life and physical integrity of every unborn human life is inviolable—it is not a concession made by society or the state, but is instead inherent to the unborn human life by virtue of its creation in the image of God.

Because human life begins at the moment of fertilization, it is against our religious and moral conviction to formally or materially cooperate in the termination of unborn human life.

With this audience, how can the former President possibly avoid speaking about this issue? Will he agree with the Alabama Supreme Court’s decision and say so? Will he mention it, but not give an opinion? Or, will he just rant about the radical left persecuting him? Personally, I think Trump too clever to get sucked down the IVF rabbit hole all caught up in the tangled judicial robes of Alabama’s Supreme Court Justices? But I don’t know how he’ll avoid it.

The IVF Genie is out of the bottle. Now what?


¹ Although, in their lawsuit, the couples assert strongly their belief in IVF and “fervent” hope their suit does not in any way harm the aspirations of other couples desperate to have children through in vitro fertilization.