The anti-abortion legal theory that could jeopardize IVF around the country.
An embryologist at West Coast Fertility Centers in Fountain Valley, California, freezes embryos in liquid nitrogen. Jay L. Clendenin/Washington Post via Getty Images Anna North is a senior correspondent for Vox, where she covers American family life, work, and education. Previously, she was an editor and writer at the New York Times. She is also the author of three novels, including the New York Times bestseller Outlawed.
The Alabama Supreme Court touched off a nationwide furor in February when it ruled that frozen, fertilized embryos legally count as “children.” The ruling upended the lives of patients undergoing IVF in Alabama and opened up a new front in the post-Dobbs battle over abortion rights.
It also revived interest in — and concern over — so-called “fetal personhood” laws, which give fetuses, and in some cases embryos, the legal rights of a person. These laws, on the books in more than a third of states, have long worried reproductive rights advocates because they can be used to prosecute pregnant people for miscarrying or potentially for undergoing necessary medical procedures. Now some fear that the Alabama ruling could open the door to more courts applying the laws to frozen embryos, jeopardizing IVF treatments across large swaths of the country.
The Alabama decision actually rests on the state’s Wrongful Death of a Minor Act, which allows the parents of a deceased child to sue people who caused the child’s death, as Vox’s Ian Millhiser reports. The state Supreme Court decided that fertilized embryos counted as children for the purposes of this law. Still, the ruling has focused attention on personhood laws because they, too, could be used to grant rights to embryos. Such an outcome could imperil IVF treatments, since they involve the storage, transportation, and sometimes destruction of embryos.
A large majority of Americans, including conservatives, support access to IVF. But some anti-abortion groups oppose the procedure, and the controversy has emerged as one of the major fault lines in a chaotic post-Dobbs landscape.
Many Americans, including lawmakers, “didn’t realize what the effects would be post-Dobbs” on the full spectrum of reproductive health, Candace Gibson, director of state policy at the Guttmacher Institute, told Vox. “This is a shock to the system.”
Fetal personhood dates back decades, but Dobbs changed everything
The legal concept of fetal personhood dates back to before Roe v. Wade, to Catholic groups that opposed the loosening of abortion laws in the 1960s. Personhood goes beyond banning abortion to argue that fetuses (and, in some cases, embryos) are people, with all the same rights as anyone else. Proponents often root their argument in the 14th Amendment, which guarantees equal protection under the law — fetuses, they argue, deserve to be treated on an equal footing with adults.
Though personhood remained on the fringes of the anti-abortion movement for decades, advocates began getting laws on state ballots starting in 2008, with a Colorado measure that would have defined a person as “any human being from the moment of fertilization.” That measure failed, and while more attempts followed, personhood did not become a dominant legal strategy on the right, in part because personhood legislation clearly ran afoul of Roe.
All that changed in 2022, when the Dobbs decision overturned Roe and allowed states broad leeway to restrict abortion. That decision paved the way for states to pass personhood laws, and for older laws, blocked by Roe, to take effect. In Georgia, for example, a 2019 law called the Living Infants Fairness and Equality Act took effect after Dobbs was decided. It defines a fetus as a person at around six weeks gestation, when cardiac activity can be detected, according to the New York Times. (While lawmakers sometimes use the word “fetus” to refer to a pregnancy at any stage of development, in medical terms, an embryo does not become a fetus until about 10 weeks gestation.)
Today, 19 states have some form of personhood provision in their law, according to Politico.
Reproductive rights and IVF advocates around the country are now worried that the Alabama ruling could focus new attention on IVF and that opponents could use personhood laws to halt or jeopardize IVF treatments. In IVF, patients often create more fertilized embryos than they intend to use — some embryos may be genetically unviable, while others may result in a miscarriage for unknown reasons. Unused embryos may be stored for a time, but storage is expensive and typically paid for by patients — eventually, embryos are often donated for medical research or destroyed. Granting legal personhood to embryos could force patients to pay for storage indefinitely or leave clinics liable to criminal prosecution if embryos are accidentally damaged. Such concerns have already led Alabama fertility clinics to pause IVF treatments.
Personhood laws and related legislation can have other consequences, too. Fetal homicide laws, for example, which treat the fetus as a separate crime victim, have already led women to be arrested for experiencing a miscarriage or for using drugs during pregnancy. Some fear that under personhood legislation, pregnant people could be prosecuted for taking medications like antidepressants that may carry risks during pregnancy, or simply for failing to get adequate medical care.
Then there are other consequences — intended or otherwise — of the laws. In Georgia, for example, fetuses are eligible for tax credits and child support and are counted as people for the purposes of redistricting, according to the New York Times.
The Alabama IVF ruling could open a door to future restrictions
The Alabama decision has produced a massive backlash, with voters worried about the future of IVF around the country. Eighty-six percent of Americans — including 78 percent of self-reported “pro-life advocates” — supported IVF in a recent poll, meaning any action to restrict the procedure is likely to be highly unpopular.
The fallout from the Alabama decision has caused some consternation among Republicans, who have generally been the ones backing personhood legislation and other abortion restrictions. Some have been walking back their support for personhood bills. A Florida bill that would protect fetuses under wrongful death laws was paused in the wake of the ruling, Politico reports. Several Republican lawmakers and candidates have affirmed their support for IVF in recent days, with former President Trump posting on Truth Social, “We want to make it easier for mothers and fathers to have babies, not harder!”
Other Republicans, however, have been more equivocal. Sen. Tommy Tuberville (R-AL), who initially praised the Alabama court’s decision, now says everyone should have the “opportunity” to have a child, but that “there’s a lot of experimentation, you know, with embryos, and they’re trying to get to the bottom of how do we do this the right way,” according to the Washington Post. Sen. Ted Budd (R-NC) says he supports IVF but that “there are other complexities” about how to handle unused embryos.
Meanwhile, some abortion opponents have long opposed IVF and may view the ruling as an opportunity, political consequences notwithstanding. Some anti-abortion groups have pointed to Louisiana, which already bans the destruction of frozen embryos — they must be either used, stored indefinitely, or donated to a married couple. (In practice, most patients ship the embryos to other states, creating logistical and financial hurdles.)
“The overturn of Roe itself was not the end of the anti-abortion movement,” Guttmacher’s Gibson said. “Efforts to advance fetal personhood will still continue to harm people’s access to reproductive health care.”
Sourse: vox.com
