The war on reproductive freedoms has come for IVF

The Republicans’ crusade to protect ‘unborn life’ is having all kinds of perverse, unintended consequences.

Ella Whelan

Ella Whelan

Topics Science & Tech USA

In February, the Republican-dominated Alabama Supreme Court ruled that embryos created using in vitro fertilisation (IVF) should be ‘considered children’.

The ruling stemmed from wrongful-death lawsuits filed by three sets of parents. Their frozen embryos were destroyed after a fertility clinic patient removed and dropped several embryos in December 2020. So to allow the lawsuits to proceed, Alabama Supreme Court ruled that frozen embryos can be deemed children.

The ruling has prompted IVF doctors in Alabama to stop all treatment, for fear of prosecution over the handling of embryos. After all, most clinics create several embryos during the process of IVF, choose those with the greatest chances of survival to implant into the woman and then discard the rest. Overnight, this common practice has been potentially criminalised.

The tragic irony of this case is that the three couples who launched the lawsuits were desperate to use IVF to have children. And yet through their actions, they have potentially stopped IVF from proceeding at all, depriving themselves and many other prospective parents of the chance to have children.

All is not lost though. A bill protecting IVF doctors from criminalisation ‘for death or damage to an embryo’ is now in the works, having been passed in the Alabama House of Representatives and the state Senate. But while that might allow a loophole, IVF clinics will no doubt still be nervous about providing treatment for patients.

Language is clearly important in this case, with so much resting on the definition of ‘children’. There are many IVF patients who do consider their embryos ‘children’ and call them such. Indeed, for those with fertility issues who want to become parents, emotional attachment can form at any time. I, like many IVF patients, was able to track my pregnancy from the first few days, which can be a powerful feeling if you thought you might never become a mother.

But there is a difference between the emotions and imagination of individuals and the reality that the law must reflect. And the reality is this: a frozen embryo in a petri dish is not a child. IVF patients know this better than anyone – miscarriages and failed transfers are commonplace. As one protester outside the Alabama state house painted on a placard: ‘You can’t cuddle an embryo.’

To understand why the Alabama Supreme Court could make such a bizarre ruling, you have to look at the state’s approach to women’s reproductive freedom in general. In 2022, lawmakers implemented the Human Life Protection Act after the US Supreme Court overturned Roe v Wade. This made abortion illegal. An amendment to the state constitution now reads that Alabama’s lawmakers must uphold ‘the sanctity of unborn life, including unborn life that exists outside the womb’.

In other words, Alabama lawmakers are prepared to view ‘unborn life that exists outside the womb’ – which now includes a frozen box of embryos – as more important than the lives of female citizens. They see women as mere carriers of embryos, fetuses and so on – bodies to be policed for the protection of the unborn.

Both likely presidential candidates have criticised the Alabama ruling. Joe Biden called it ‘outrageous’, and Donald Trump stated that ‘we want to make it easier for mothers and fathers to have babies, not harder’.

They’re right that this is an absurd, counterproductive ruling. But at its heart is an all-too-common obsession, especially among Republicans, with protecting the ‘unborn’. This almost always comes at the cost of women’s reproductive freedom. And now, in a grimly ironic twist, it’s threatening parents’ ability to have children at all.

Ella Whelan is the author of The Case For Women’s Freedom, the latest in the Academy of Ideas’ radical pamphleteering series, Letters on Liberty.

Picture by: Getty.

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Topics Science & Tech USA


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