In the Alabama case, the court established that the moral nature of an embryo gives it the same legal protections as a born human under the state’s “wrongful death” statute. Why, then, should the same embryos not be afforded protection from imprisonment, trafficking, experimentation, and eventual destruction? Strictly speaking, IVF can be done in a way that does not lead to the creation of “excess” embryos.

A decision by the Supreme Court of Alabama, that the state’s Wrongful Death of a Minor Act applies to “all unborn children, regardless of their location” including “extrauterine” embryos stored in a “cryogenic nursery,” has resulted in at least three fertility clinics suspending in vitro fertilization (IVF) services. In an interview on The Daily podcast, New York Times reporter Azeen Ghorayshi claimed that the decision “puts all fertility care in Alabama in limbo.”   

It sets a huge and quite scary precedent for anyone who is undergoing IVF, anyone who works in the fertility industry in Alabama who is working with these embryos that are suddenly considered children.  

That panic, which has been typical of the media coverage about the decision, makes sense given that the court finally addressed the central question of IVF, a question that the IVF industry has largely depended upon not being answered in order to grow and expand. Specifically, the court’s decision has only put a certain kind of fertility care “in limbo”: fertility care that involves the creating, storing, preserving, and destroying of human embryos. Asking the question “what are they?” was long overdue, given that approximately 1.5 million embryos left over from IVF services are currently stored in freezers in the United States, the vast majority of which are destined for either destruction or donation for medical testing,  

Even if late in coming, pro-lifers have been right to celebrate this small bit of ethical clarity for an industry with little of it. During IVF, eggs are fertilized with sperm in a lab. Often, multiple embryos are created and tested for viability before being transferred into the uterus of the mother or a surrogate. This is done in rounds of one to five embryos at a time. If a pregnancy occurs, the remaining embryos are frozen. 

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