A Fact-Free Campaign Against Parents and Unborn Children in Alabama

This is Issue 100 of the On Point Series. 

Strange things are happening with the reproductive technology known as in vitro fertilization (IVF), through which human embryos are produced in a laboratory for couples struggling with infertility.

Reporting on Alabama’s approval of a new law on IVF, U.S. News hailed it as protecting “providers and patients.” Virtually identical declarations were made by CNN, NPR, and ABC News.

Unfortunately, these statements are gravely misleading.

The new law grants absolute immunity from both civil and criminal liability to IVF clinics for destroying human embryos, without parents’ consent and for any reason. It protects clinics from embryonic children’s grieving parents.

Leading up to the new law’s passage was a campaign of uninformed outrage. The campaign led both Democratic and Republican politicians to criticize the Supreme Court of Alabama, after it ruled that the state’s Wrongful Death of a Minor Act allows parents of an IVF embryo to file suit against others who engage in the “wrongful” and “negligent” destruction of their offspring. That campaign also led the Alabama legislature to pass the new law granting blanket immunity to clinics that destroy embryos.

This court had already ruled in 2011 and 2012 that this law allows a suit filed by the parents of an unborn child in the womb, from conception onward. Neither side in the current lawsuit challenged those rulings. The new question for the court was this: Is the same unborn child, at the same stage of development, covered outside the womb, or should the court imagine that the Act has an “unwritten exception” saying that “location” overrides the embryo’s membership among living human beings? Sensibly, the court overwhelmingly chose the former option.

One judge even noted during oral argument that some unborn children with medical problems are briefly removed from the mother’s womb during pregnancy, given treatment, then returned to the womb for later delivery. If the treatment is botched and the child dies outside the womb, should parents have no legal recourse? It’s a good question.

Nonetheless, President Biden immediately blamed Donald Trump for an “outrageous” ruling because he nominated some of the U.S. Supreme Court judges who voted to overturn Roe v. Wade in 2022. (Biden did not pause to wonder how the Alabama court’s rulings of 2011 and 2012 have remained in effect for a decade during Roe’s hegemony.) Vice President Harris accused the Alabama court of “robbing women of the freedom to decide when and how to build a family” – although the court was only allowing women and men to sue a clinic that deprived them of exactly that freedom.

Former president Trump urged the Alabama legislature to pass a law protecting the “miracle of life” of IVF. Republican Larry Hogan, the former governor of Maryland, said the ruling should be overturned because “government should never stand in the way” of couples seeking “the joy of parenthood.” And Republican congressman Matt Gaetz of Florida said the ruling turns couples who want “the American dream” into “criminals.”

None of these statements attended to the facts of the case. As construed by the court, Alabama’s law empowers parents themselves to file suit when, without their consent and against their interests, a medical facility irresponsibly deprives them of that “miracle,” that dream, and that joy. The Alabama court was standing up for couples’ rights, and it pointedly declined to extend its ruling to the separate area of criminal law.

This case arose from a specific and tragic event. Alabama’s Center for Reproductive Medicine, which provides cryopreservation of embryos not yet needed for an attempt at live birth, had warned couples that the freezing process “could theoretically be injurious to the embryo.” But in this case, it left a door to the adjoining hospital unlocked, allowing a hospital patient to wander in, seize the container holding five frozen embryos, and drop it on the floor when the extreme cold hurt his hand. Three couples sued the Center for its negligence in allowing the wrongful death of their embryonic children. The state supreme court’s ruling did not decide the suit in their favor, but only reverses a trial court’s ruling that dismissed it out of hand.

Some public commentaries charged the court with having banned IVF outright because some discarding of embryos is “inherent” in the IVF process. But that charge ignored the facts as well. As an attorney for the couples declared in oral argument before the state supreme court:

We’re here advocating on behalf of the Plaintiffs who are supporters of in-vitro fertilization. It worked for them. They have two beautiful children in each family because of in-vitro fertilization. The notion that they would do anything to hinder or impair the right or access to IVF therapy is flat wrong. That’s not why we’re here. What we’re advocating is, if you’re in the business of helping create embryonic children, you better also be in the business of safeguarding them and protecting them, locking the doors.

Of course, informed consent, including information about the risks of medical procedures, is legally required throughout the country (or it was, until passage of the new Alabama “immunity” law enacted to counter the court’s ruling). To ignore this requirement invites a malpractice suit. The Center provides a lengthy standard consent form for IVF, informing couples that it may discard embryos if they do not seem to be developing normally (while admitting that the technique for discerning abnormality is “not perfect”). It also asks couples what should be done if various scenarios take place – for example, if one or both partners later die, or they decide not to have any more children – and for each scenario one option to check off is “Destroy the embryos.” So yes, couples consenting to IVF know that there may be discarding or destruction of embryos.

Couples are not informed that the clinic may allow strangers to wander in and throw their embryos on the floor, and surely, they would never sign a consent form entertaining that prospect. By the same token, a hospital must inform a patient undergoing major surgery of any risk of harm or death from that surgery – but it is not thereby authorized to allow the patient to be thrown out the window instead. There is a major difference between anticipated risks and “wrongful” or “negligent” behavior causing death, and the Alabama ruling had dealt only with the latter.

Yet some IVF clinics in Alabama reacted to the court’s ruling by suspending their operations. Perhaps they saw a need to review their safety standards so such things cannot happen again. But if the new law passed by the state legislature is any indication, they (or their insurance companies) may have seen an opportunity to exempt themselves from the standards of responsible practice that all other health professionals must comply with and told legislators that nothing less than absolute immunity would convince them to reopen. But the implied claim that IVF clinics cannot operate without unlimited discretion to destroy embryos is difficult to make. For example,  Louisiana, which since 1986 has recognized the IVF embryo as a “juridical person” with a right to careful treatment, has long had active IVF clinics.

The new law declares that, notwithstanding any other law, “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” Of course, the state supreme court ruling had nothing to do with liability for couples “receiving” IVF services, or with criminal liability for anyone. Since the word “embryo” generally refers to the unborn child up to the eighth week of pregnancy, the law even seems to exempt the clinics from any state restrictions on abortion.

Legal experts are now worried that this law does more harm than good. As one law professor told NBC News, the answer to such controversies should never be, “Well, let’s just immunize fertility clinics and contribute to the Wild West of the fertility industry.”

The law does allow a suit against the “manufacturer” of equipment used in IVF, but with damages limited to “compensatory damages calculated as the price paid for the impacted in vitro cycle.” This is not a deterrent but a “buy one get one free” sale. And in cases like the present one, would couples have to sue the manufacturer of the door that was left unlocked? The clinic itself could simply throw away all of a couple’s embryos to get them to pay for another expensive reproductive cycle, with no legal consequences.

In short, this law makes Alabama the most dangerous place in the country for an embryonic child, and for parents wanting that child alive. If that seems an exaggeration, a study published in 2020 found 133 lawsuits in the U.S. in the previous decade that “credibly alleged the negligent destruction of cryopreserved embryos.” Many of these arose from incidents in 2018 when clinics in San Francisco and Cleveland accidentally allowed the thawing and death of embryos belonging to hundreds of couples. In the California case, a jury awarded almost $15 million to grieving families, later appealed to result in settlements of an undisclosed amount. Thus, one of the most pro-abortion states in the U.S., where the IVF clinic’s president described the lost embryos as merely “tissue,” allows more accountability for the deaths of embryonic children than Alabama now does.

Most infertile couples do not agree with the dehumanizing term “tissue.” In one study allowing IVF patients to assess the moral status of their embryos on a scale from 1 to 7, 18% chose full moral status and only 10% chose the lowest status, with others ranging between the two.

These incidents raise a question about the law’s treatment of abortion versus other attacks on the unborn. President Biden’s statement ignored that distinction. Yet his Administration is required to enforce “Laci and Conner’s Law,” which in federal jurisdictions provides for a separate charge of homicide for any attack on a pregnant woman that kills her unborn child. 39 states, including Alabama, have such fetal homicide laws. States participating in the federal Children’s Health Insurance Program (CHIP) are allowed to provide federally subsidized health insurance to unborn children, which certainly treats them as “children.” And 11 states have laws against harmful experimentation on human embryos outside the womb.

Such laws have all been legally valid under Roe v. Wade. In the 1989 case Webster v. Reproductive Health Services, the U.S. Supreme Court declined to invalidate the preamble of Missouri’s abortion law, which declared that “the life of each human being begins at conception” and that “unborn children have protectable interests in life, health, and wellbeing” that should be respected in the state’s laws. The court cited its statement in the earlier Akron abortion case that “a State may not adopt one theory of when life begins to justify its regulation of abortions” (emphasis added), and observed that other areas of law are not covered by Roe.

Yet advocates who say they want to “codify Roe” have expressed outrage at the Alabama court’s ruling, which would have been legally valid under Roe.

One possible explanation is that, while these advocates like to hold up Roe as a talisman because it scores well in opinion polls, they have long been gravely disappointed by its actual scope. That decision’s reliance on individual “privacy,” then on individual “liberty” in the 1992 case of Planned Parenthood v. Casey, did not invalidate modest abortion regulations, restrictions on public funding of abortion, or conscience laws for pro-life health care providers. So Planned Parenthood abandoned the “pro-choice” theme a decade ago. Instead, such groups advance abortion as a positive good – a public entitlement that government must promote as “essential health care.” Embodying this agenda is the federal “Women’s Health Protection Act” (WHPA) endorsed by every major national pro-abortion organization.

Now Roe is again invoked to advance an agenda far broader than the scope of the decision itself – this time, to extinguish legal respect for the wanted unborn in non-abortion contexts. Despite the breadth of the Alabama law protecting irresponsible IVF clinics, a Planned Parenthood spokesperson criticized it for not explicitly stating that a human embryo cannot be a “child.”

In two other ways, the campaign against the Alabama court decision parallels the “reproductive rights” movement’s response to new laws against abortion enacted after Roe’s reversal.

First, as noted in 2022, pro-abortion groups had ignored what the pro-life laws actually said, instead “revving up a public relations apparatus to spread false and exaggerated claims in order to ‘paralyze’ physicians and discredit the laws.” In Missouri and Texas, for example, they falsely charged that the pro-life laws made it a crime to treat ectopic pregnancies, and that they banned abortion unless the woman is facing imminent death. Now, in order to frighten infertile couples and political leaders, they raise the false charge that the Alabama ruling prohibited IVF.

Second, as the title of the WHPA suggests, these groups present their agenda as standing up for the health of women against uncaring pro-lifers. In fact, the WHPA would authorize lawsuits against policies that protect women. Even if an abortion clinic regulation clearly does protect women’s life and health, anyone adversely affected by that policy (including a for-profit abortion clinic) can sue to have it invalidated. The regulation only survives if supporters provide “clear and convincing evidence” that its goal cannot be met by a policy that more fully advances ready “access” to abortion. Meeting that burden of proof could require passing the abortion-friendly policy first, and watching as women die.

In the present case, the Alabama legislature was pressured to disenfranchise women, increase their health risks through renewed efforts to conceive, and allow the wanton disposal of the unborn offspring they very much want alive. Pro-life legislators should restore grieving parents’ rights.

Richard Doerflinger, M.A., is a Fellow with the Center for Ethics and Culture at the University of Notre Dame, an Adjunct Fellow in Bioethics and Public Policy with the National Catholic Bioethics Center, and an Associate Scholar of the Charlotte Lozier Institute.