Last Friday, the Alabama Supreme Court became the first in the nation to recognize frozen embryos as legal persons. The court’s decision — in a case in which three couples sued a fertility clinic for wrongful death after a patient destroyed several embryos — has already led the University of Alabama Birmingham, the state’s largest health care system, to pause IVF procedures. But what is happening in Alabama is just the beginning. This decision will affect the millions of people who become pregnant each year, their families, and their health care providers.
To anyone who closely read Dobbs v. Jackson Women’s Health Organization, the Supreme Court decision that ended the constitutional right to abortion almost two years ago, the Alabama decision should not come as a shock. The majority opinion, written by Justice Samuel Alito and joined by most of his conservative colleagues, repeatedly referenced the “unborn human being” — echoing the language of conservative Mississippi lawmakers. Furthermore, the majority declared that the state has a legitimate interest in the “preservation of prenatal life at all stages of development,“ without regard to whether that life exists in utero or not.
That language cleared the way for states to treat fetuses at any state of development as legal persons. That includes embryos created by in vitro fertilization, the reproductive technology through which 2% of children in the U.S. are born each year. As a result of IVF, there are as many as 1.5 million frozen embryos in the country. The Alabama decision might mean that some of these embryos need to remain frozen forever — at least until someone uses them. Otherwise, anyone who destroys the embryos or even uses them for research could face claims for wrongful death and be liable for millions of dollars in damages. Of course, that assumes that anyone will be willing to offer infertility services in Alabama in the first place: doctors at UAB expressed fears of…
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