Alabama politicians are facing scrutiny after the state Supreme Court ruled that frozen embryos used for in-vitro fertilization qualify as human beings under the law.
On Feb. 16, the Alabama Supreme Court released its 8-1 decision on Burdick-Aysenne v. Center for Reproductive Medicine and sided with a pair of parents alleging they have the right to sue a fertility clinic because several of their frozen embryos were destroyed accidentally by an unauthorized individual in 2020. The decision cites Alabama’s 1872 Wrongful Death of a Minor Act and extends the state law to apply “to all unborn children, regardless of their location” inside or outside a woman’s uterus. It does not formally ban the practice of IVF, however.
“The Alabama Constitution’s recognition that human life is an endowment from God emphasizes a foundational principle of English common law, which has been expressly incorporated as part of the law of Alabama,” wrote Alabama Chief Justice Tom Parker — who cited Genesis 1:27, Genesis 9:6, Exodus 20:13, and Jeremiah 1:5, as well as theologians John Calvin, William Blackstone, Petrus Van Mastricht, Thomas Aquinas and Augustine of Hippo, in a concurring opinion.
Implications of the ruling
This decision has far-reaching implications for IVF treatments and fertility specialists in Alabama, with multiple facilities and clinics pausing practices to avoid potential legal issues or criminal lawsuits that could be incurred by alleged improper handling of embryos, and facing concerns about the proper means of discarding unused embryos under the new law. The decision also could endanger LGBTQ couples’ options with IVF surrogacy and has led many outlets to accuse the state of becoming a fundamentalist theocracy driven by Christian nationalism.
“We have kind of what is just a brand new landscape for the law,” Guntersville, Ala., attorney Jasmine Matlock told Good Morning America. “At this point, there is no decision on when a physician or a clinic can conclude storing these embryos so they are potentially liable for the wrongful death of an embryo after the parents have passed.”
It remains unclear if the decision will face higher court scrutiny, as many legal scholars allege the decision violates the First Amendment’s Establishment Clause. However, it is unlikely the U.S. Supreme Court that overruled Roe vs. Wade will take up the case or side against the state.
State and federal politicians react
National politicians from both sides of the aisle have decried the situation. President Joe Biden said Alabama’s decision is a negative result of overturning Roe v. Wade and declared: “The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable.”
“The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable.”
Former President Donald Trump also criticized the ruling in a Truth Social post, stating he “strongly supports the availability of IVF” and saying, “We want to make it easier for mothers and fathers to have babies, not harder!”
Fearing a similar backlash to the one that harmed them in the 2022 midterms after Roe was overturned, Republican politicians have been quick to show support for IVF.
Governor Greg Abbott of Texas told CNN Feb. 25 he agrees with Trump, saying “the IVF process is a way of giving life to even more babies.”
U.S. House Speaker Mike Johnson similarly endorsed IVF, calling it a “blessing for many moms and dads who have struggled with fertility.”
Alabama politicians from both parties made it clear they intend to clarify the state’s official IVF position in law. On Feb. 22, state Democrats introduced a bill that affirms embryos outside of the uterus are not considered human beings under the law, with state Republicans led by Sen. Tim Melson reportedly planning to file a concurring bill.
U.S. Sen. Tommy Tuberville of Alabama tweeted Feb. 23: “I’ve spoken with Alabama Speaker of the House Nathaniel Ledbetter and he’s assured me that a bill to protect IVF will be taken up immediately. We want everyone to have the opportunity to have kids. IVF will remain legal and available in Alabama.”
Alabama Attorney General Steve Marshall also clarified on Friday that the state government has no intention of prosecuting IVF users.
In 2006, Tom Parker announces plans to run for chief justice of the Alabama Supreme Court on the steps of the state judicial building in Montgomery, Ala., April 5, 2006. The Alabama Supreme Court has ruled Friday, Feb. 16, 2024, that frozen embryos can be considered children under state law, a ruling critics said could have sweeping implications for fertility treatments. (AP Photo/Jamie Martin, File)
Chief Justice Tom Parker’s position clarified
Despite having made a biblical case for frozen embryos to be considered human life, Alabama Supreme Court Chief Justice Parker downplayed the result of that ruling, adding to the confusion.
In concurring opinion, Parker said he does not see the court’s decision having far-reaching consequences, so long as the Legislature acts properly to avoid unintended consequences.
“Although certain changes to the IVF industry’s current creation and handling of embryos in Alabama will result from this decision,” he does not believe the lone justice who dissented in the ruling was correct in saying “IVF will now end in Alabama,” Parker said. He called that warning not well-founded.
“I urge the Legislature to provide more leadership in this area of the law given the numerous policy issues and serious ethical concerns at stake,” Parker wrote. “Ultimately, it is the Legislature that possesses the constitutional authority and responsibility to be the final arbiter concerning whether a frozen embryo is protected by the laws of this state. Without such guidance, I fear that there could be unfortunate consequences stemming from today’s decision that no one intends.”
Parker is a member of Frazer Church in Montgomery, Ala., a conservative Free Methodist Church that left the United Methodist Church in 2022, and endorsed the dominionist Seven Mountain Mandate in a Feb. 16 interview with fundamentalist television host Johnny Enlow. Seven Mountains Dominionism calls for Christian dominion of “government, education, media, religion, family, business, and entertainment.” That interview occurred the same day the court decision was handed down.
Pro-life defenders praise the ruling
However, critics of IVF treatments have broadly praised the Alabama Supreme Court’s undermining of the practice as a victory, as many pro-life activists and Christian ethicists view the medical practice as immoral or morally questionable. The Roman Catholic Church has condemned the practice as sinful and an affront to the sanctity of life.
Russell Moore, former president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, previously condemned IVF before Alabama’s decision. He’s argued that “IVF is a lawless, dangerous, unregulated, multibillion-dollar industry in the USA” and said the practice commodifies childbirth and discards unused embryos that bear the image of their Creator.
“Couples who pursue IVF will bear the burdens of doing so in their bodies: the regimen of hormonal treatments, autoerotic ‘pleasures’ in sterile offices, and extractive surgeries all take their toll.”
“There are many other costs to IVF,” writes Plough Quarterly’s Matthew Lee Anderson. “Couples who pursue IVF will bear the burdens of doing so in their bodies: the regimen of hormonal treatments, autoerotic ‘pleasures’ in sterile offices, and extractive surgeries all take their toll.”
Matthew Lee Anderson
He added: “It intensifies an already asymmetrical burden on women, by adding invasive procedures to the process; it imposes unknown risks on children, who are transferred and stored while in an exquisitely vulnerable condition at the origins of their life; in screening and discarding nascent human beings with the ‘wrong’ genetic profile, it perniciously qualifies the value of lives based on their characteristics and reaffirms a conditional attitude toward human dignity that is by no means confined to the IVF laboratory.”
Live Action President and Catholic pro-life activist Lila Rose praised the court’s decision, noting in a statement, “This decision made by the Alabama Supreme Court affirms the scientific reality that a new human life begins at the moment of fertilization. Each person, from the tiniest embryo to an elder nearing the end of his life, has an incalculable value that deserves and is guaranteed legal protection.”
Pastor David Tarkington of First Baptist Church of Orange Park, Fla., wrote that while the motivations of people seeking IVF are good and sympathetic, the morality surrounding the issue is murky and dangerous.
“This is a hot-button topic, and the fact is that many evangelicals would rather not discuss it at all,” he said, arguing the issue opens the door for a light form of eugenics that commodifies pre-born embryos for the choice of the parents.
Evangelical Christian domination
One of the sharpest retorts to the Alabama ruling came from Elie Mystal, justice correspondent for The Nation and host of its legal podcast, “Contempt of Court.”
In a Feb. 23 opinion piece, he wrote: “The word ‘God’ appears 41 times in Parker’s opinion, which also liberally quotes from the Bible, specifically the Book of Genesis, and theologians like Thomas Aquinus and John Calvin. In an interview, Parker said he supports the ‘Seven Mountain Mandate,’ which is a code for imposing Christian rule based on biblical precepts on the rest of society.
Elie Mystal
“Folks, this is the chief justice of a state supreme court, and he is explicitly invoking fundamentalist Christian ideology to justify assigning legal liability and financial penalties to people who run afoul of Christian orthodoxy.”
Mystal continued: “The legal implications of elevating a cellular ice cube to the status of a born-alive child are bad. As Rewire’s Jessica Mason Pieklo explains, there is a direct line from the court saying (as the Alabama court did) that you can’t ‘destroy’ a frozen embryo to forcing women to implant any embryos they help create (which is probably what’s coming next). And by giving full personhood rights to a collection of cells, the attack on IVF can almost certainly be used to further restrict abortion rights and reproductive health care, even in cases of rape or incest or when the life of the mother is at risk.”
Amid the myriad of legal questions created by the Alabama ruling, the greatest danger is fundamentalist Christians enforcing their narrow views on the nation, he charged.
“The fundamentalist Christians running the joint only care to invoke God when Bible-thumping can be used to justify controlling women, limiting their choices, and forcing them to do something they don’t want to do. God, to these glorified astrologers, is all wrath, no grace.
“It would be entirely appropriate to focus solely on the nonsensical legal argument put forward by the Alabama Supreme Court, but it’s important to point out that this argument is not actually a legal one. It is a religious argument: The court is saying the law cannot be interpreted absent the justices’ exclusive interpretation of God’s will.”
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