The Anti-Abortion Movement is Coming for Fertility Treatments

An Alabama court may have just ended IVF in the state.

Photo by Girl with red hat on Unsplash

The availability of in-vitro fertilization in Alabama may now be in question after the state’s Supreme Court ruled that embryos kept in clinic freezers are considered persons under the law, and protected by the state’s Wrongful Death of a Minor Act. It’s a shocking and jarring decision that radically extends the bounds of legal personhood, tosses any claims to originalism aside, and seems primed to make a variety of fertility treatments either extremely costly for patients, or extremely legally risky for clinicians.

If you want a sense of just how overtly theocratic the opposition to abortion and IVF are, I invite you to read the dissent in the Alabama decision, which was penned by the court’s chief justice and is a really really long argument that can be basically summed up as “God said so.” So that’s who’s leading the court in Alabama. The majority opinion isn’t much better: It refers to embryos created via IVF and kept in cold storage as “extrauterine children,” and uses other Orwellian “pro-life” terms to obscure and redefine basic scientific and medical processes.

Here’s what happened that gave rise to this case. Three couples — Jason and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne — went to the Center for Reproductive Medicine in Alabama for IVF procedures between 2013 and 2016. Each couple had embryos created, and each went on to have two children from some of those embryos, leaving the rest frozen in storage for several years. In 2020, a patient from the adjacent hospital went wandering through the clinic’s halls, made their way into the freezer storage room, removed some of the embryos, and dropped them, destroying them. These three couples then sued under Alabama’s Wrongful Death of a Minor Act. (There were negligence claims as well, which were found moot).

The Alabama Supreme Court heard this case on appeal, and found for the couples, holding that the death of their embryos counted as wrongful deaths of minors under Alabama law.

These three couples were clear that they didn’t want their case to be used to impede access to IVF in Alabama. Unfortunately, they don’t really have a say over that.