Why are we surprised IVF is part of the assault on reproductive freedom?

The decision stems from a case where frozen embryos were accidentally destroyed in an Alabama fertility clinic; the couples who lost embryos then sued the clinic, pursuing a wrongful death of a minor claim under Alabama state law.

The plaintiffs argued that their embryos were “people” under Alabama law, and thus they should be able to sue under Alabama’s wrongful death statute. The trial court judge decisively threw out the case, finding that “cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ or ‘child’” under Alabama law.

And then the case got to the Alabama Supreme Court.

In a complete reversal of the lower court’s decision, the Alabama Supreme Court squarely found that an embryo is a “minor child” under Alabama state law.

The lone dissenting Alabama Supreme Court justice quickly sounded the alarm about what this outlier decision could mean for the future of IVF in Alabama, writing “No court — anywhere in the country — has reached the conclusion the main opinion reaches … the main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization (“IVF”) in Alabama.”

And that’s exactly what is happening: Last Wednesday, the University of Alabama at Birmingham stated that it has been forced to pause IVF treatments “as it evaluates the Alabama Supreme Court’s decision that a cryopreserved embryo is a human being,” noting that they “must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments.” On Thursday, two more Alabama clinics followed suit.

Let’s be clear: In the name of “protecting life” Alabama just made it extraordinarily difficult, if not ultimately impossible, for people who desperately want to have a baby — to, ironically, bring a new “life” into the world — to use IVF. 

Like the University of Alabama at Birmingham clinic, all facilities in that state will now have to evaluate the legal and financial risks of continuing to provide IVF care, the duty to keep embryos frozen indefinitely and questions of potential criminal liability. All of this will undoubtedly lead to, at best, more limited availability of IVF and skyrocketing costs — think about the malpractice insurance rates — for an already hugely expensive medical treatment.

It defies logic, but this should not surprise us.  The campaign to create fetal personhood in all areas of law — whether to prosecute pregnant women for harm to a fetus, regulate women’s pregnancy and birthing decisions, ban abortion or, now, limit IVF — has been deliberate and methodical. And the true intent of that campaign has never been about actually protecting life.

The Alabama Supreme Court spoke of its concern for embryos — what they termed “extrauterine children — that is, unborn children who are located outside of a biological uterus.” However, Alabama’s record lays bare that this concern about protecting “life” does not extend to pregnant women, mothers or born infants.

Let’s look at the facts:

Know what Alabama has done in the name of protecting life? It failed to protect born infants: Alabama has one of the highest infant mortality rates in the nation.

Know what else Alabama has done? It failed pregnant women: Alabama has one of the highest maternal mortality rates in the nation.

Know what Alabama has achieved? Alabama has one of the highest rates for arresting and criminally prosecuting pregnant women in the nation.

So, the Alabama Supreme Court’s decision should not surprise us. Alabama has already banned abortion at all stages of pregnancy. This is the next step in a campaign to decimate the full spectrum of reproductive choices — whether that’s using IVF to begin a pregnancy or accessing abortion care to end a pregnancy. And do not be surprised when the court’s decision is used as precedent to bar access to emergency contraception or contraceptive methods like an IUD.

The Alabama Supreme Court’s decision is not about protecting life. It is about control. It is about establishing fetal and embryo personhood in every area of law. It is about eradicating reproductive choices. It is about deciding how people — and which people — can or cannot have children and form families.

And we should not be surprised.

Jessica Waters is an assistant professor at American University’s School of Public Affairs