A ruling by Alabama’s Supreme Court will have a chilling effect on the IVF industry

There are one million frozen embryos in IVF clinics across the United States and they are all “extrauterine children”. That is the stunning opinion handed down last week by the Alabama Supreme Court and it has sent shivers up and down the spine of the IVF industry.

The case, Burdick-Aysenne v. Center for Reproductive Medicine, was brought by three couples whose embryos had been destroyed in a bizarre accident in the city of Mobile. A patient wandered into the embryo storage area of the fertility clinic through an unsecured door, opened the freezer and removed a container. Since embryos are kept frozen at about -196° Celsius (-321° Fahrenheit), the patient suffered freeze burns and dropped the container, killing the embryos.

The parents then sued the clinic for wrongful death under Alabama’s Wrongful Death of a Minor Act. Both the parents and the clinic accepted that an unborn child is a "human life," "human being," or "person" – but is a frozen embryo one as well? In the words of the court:

The question on which the parties disagree is whether there exists an unwritten exception to that rule for unborn children who are not physically located "in utero" -- that is, inside a biological uterus -- at the time they are killed.

The court decided by a vote of 8 to 1 that “extrauterine children” living in a “cryogenic nursery” are children. As Justice Jay Mitchell wrote for the majority:

This Court has long held that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act, a statute that allows parents of a deceased child to recover punitive damages for their child’s death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.

If they are “extrauterine children”, Alabama’s IVF industry will be forced to make radical changes in its practices. The sole dissenting justice said as much in his opinion: “the main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization (‘IVF’) in Alabama.”

The University of Alabama at Birmingham health system has already pressed the pause button on IVF treatments. “We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we 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,” a spokesperson said.

Even the White House joined in the lamentation. President Biden’s press secretary, Karine Jean-Pierre, said that the Alabama court’s decision would lead to “exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make.”

Needless to say, the IVF industry was horrified by the decision. The president of the American Society for Reproductive Medicine, Marina Gvakharia, said that it was unscientific:

From a scientific perspective, embryos represent a stage in the continuum of human development, but they do not possess the attributes of personhood. Recognizing this crucial distinction is paramount to ensuring that legal decisions align with scientific understanding and respect individuals' reproductive rights.

What else would you expect? The whole IVF industry is based on the premise that the one million embryos in deep freeze are just blobs of disposable human tissue, not human beings. But, in any case, whether or not they are “persons” is a philosophical question which science cannot answer.

In Alabama, it is also a constitutional question which its Supreme Court has answered.



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Impact on IVF industry

Will Burdick-Aysenne v. Center for Reproductive Medicine influence the practice of IVF elsewhere in the United States? Not immediately. The defendants are unlikely to appeal to the same US Supreme Court which was responsible for Dobbs. If they were to lose, the frozen embryos would become “extrauterine children” in “cryogenic nurseries” in the other 49 states.

Furthermore, section 36.06 of Alabama’s state constitution, which voters adopted in 2018, guarantees “the sanctity of unborn life and the rights of unborn children, including the right to life”. Most other states are not so committed to protecting the unborn.

The court’s decision does not ban IVF but it may force the industry to reassess the way it works. It is normal practice to create several embryos but only to implant one or more, with the others kept as “spares”, sometimes for years, sometimes for decades. There are other approaches to IVF which are more protective of embryos. Italy, for instance, only allows clinics to create three embryos and all three must be transferred. It has effectively banned cryopreservation of “extrauterine children”.

The Alabama court’s ruling ought to prompt a closer scrutiny of the global US$24 billion IVF industry. It recently embarked upon a charm offensive to lobby for insurance coverage and government subsidies for infertility treatment. Why? Because of a “catastrophic” decline in fertility rates around the world. It is touting IVF as a solution to demographic decline.

This claim is unproven. The best counter-example is Japan, where 5 percent of births are IVF babies, one of the highest rates in the world. But Japan also has one of the lowest birth rates and may have entered a demographic death spiral. The problem may be that readily available IVF encourages women to delay having children. By the time they are ready, their biological clock has stopped ticking.

Undeterred by lack of evidence, the International Federation of Fertility Societies has created a website called “More Joy” to promote its services to a world where falling fertility threatens “economic growth and social stability”. “Together let’s ensure that everyone who wants to build a family can,” it says.

A growing segment of the market for fertility services is single women and gay and lesbian couples. That’s the reason why the ASRM insists that “family building” is a basic human right for everyone, regardless of marital status or sexuality. IVF has become a pillar of the LGBT lifestyle by enabling LGBT people to create children of their own.

The greedy and increasingly industrialised IVF industry has had a dream run since the birth of Louise Brown in 1978. It’s about time that someone questioned the assumptions which underpin it. The Alabama Supreme Court decision is a chance to open up that conversation. 

Michael Cook is editor of Mercator.

Image credits: Alabama Supreme Court in 2023 from its website  


Showing 21 reactions

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  • Juan Llor Baños
    commented 2024-02-28 07:24:19 +1100
    Extraordinario artículo!!
  • mrscracker
    Mr. Cook,
    Just a question not necessarily related but have you ever listened to Iain McGilchrist or read his books? One of my children shared a lecture by him at Cambridge & it went over my head a bit re. brain hemispheres, but he had some important things to say about society, science, & the delusions a culture can suffer from. It was very interesting.
  • mrscracker
    Lots of comments here.
    I was busy over the weekend getting my garden ready, but it occurred to me to wonder how many US voters would actually expect Donald Trump to have a different opinion on this than the one he seems to hold? If a majority of Catholics are uninformed about IVF & think it’s just a benevolent method of assisting folks to become parents, why might we assume Mr. Trump knows better? And in any case, would anyone vote or not vote for a presidential candidate based upon their understanding of IVF?
  • Steven Meyer
    commented 2024-02-26 13:16:39 +1100
    Well, OK, we agree the birth dearth is a mystery.

    A few serious questions:

    We seem to have similar opinions about Trump. How can people who purport to follow the teachings of Jesus believe Trump is somehow “God’s instrument”?

    Catholicism has a proud tradition of social justice. Why have so many Catholics – especially in the United States – abandoned it for what I can only call the Gospel according to Ayn Rand?
  • Michael Cook
    commented 2024-02-26 12:51:51 +1100
    Look, as you said below, whoever solves that will get a Nobel Prize. We are obviously competing for that accolade. No way, I will give away my ideas on that.

    Seriously, it looks more complex the more one studies it. It’s not just the US or Australia — but Asia, Latin America, everywhere in Europe. So it is multi-factorial and mysterious.
  • Steven Meyer
    commented 2024-02-26 12:40:14 +1100
    Michael Cook

    I wasn’t simply referring to IVF. The question you posed was why women aren’t having babies at a younger age? Why wait till 42 instead of 32 etc.

    That’s what I was trying to answer. Because that’s the key to the “birth dearth”.

    Like you I’m not a fan of IVF – which does not mean I want to make it illegal.

    So what is your answer to the question of why women keep delaying motherhood?
  • Michael Cook
    commented 2024-02-26 10:53:10 +1100
    ivf is a tricky area that might have puzzled Joseph Priestly. Thanks for the comparison. I will be delighted to have a Wikipedia page as long as his after I turn up my toes. At Mercator, we do try to present evidence-based arguments in the articles, rather than rants. Comments, of course, are the natural habitat of rants.

    As for ivf and evidence-based medicine — there are some problems. It does work for some women, but its social effects require more scrutiny.
  • Steven Meyer
    commented 2024-02-26 10:15:14 +1100
    Michael Cook wrote:

    “…A woman who cannot conceive at 32 might have been able to conceive at 22. A woman who cannot conceive at 42 might have been able to conceive at 32. The painful question might be — why didn’t they try earlier?”

    If you could give a coherent, evidence-based answer to that question you’d be in line for a Nobel Prize.

    Note: Evidence based

    All I ever see are ideologically based rants against those wicked feminist, atheist, cultural Marxist woke devils. or some mysterious entity called “the elites” who, for some reason, want to suppress birth rates. You all remind me of Joseph Priestley (1773-1804), a brilliant “natural philosopher” who was so blinded by the phlogiston theory of heat that he never realised he had discovered oxygen.

    I don’t know the answer. But of this I am certain.

    —It is a multifactorial phenomenon.

    —There are both financial and cultural factors involved

    —There is no quick fix

    —Medical/biological factors such as obesity and endocrine disrupting chemicals may be a factor

    —Fixing it will be expensive but it will require more than money. It may, probably will, require a change in the way societies and workplaces are organised.

    Once upon a time I used to say, “A good scolding by a leftie never changed anyone’s behaviour”.

    Now I say, “A rant from a ‘conservative’ never changes anyone’s behaviour”.

    I hope you will accept this in the spirit in which it is intended, namely a spirit of genuine inquiry rather than a polemic.
  • Michael Cook
    commented 2024-02-26 08:32:21 +1100
    There is another issue here. A woman who cannot conceive at 32 might have been able to conceive at 22. A woman who cannot conceive at 42 might have been able to conceive at 32. The painful question might be — why didn’t they try earlier? How about the women who give birth to an ivf child after 70?
    Should their wishes be accommodated?
  • Michael Cook
    commented 2024-02-26 08:25:47 +1100
    Hullo there, Mr Page.

    I’m not sure where you are going with this.

    Success rates with ivf vary with age. If a woman is below 30, the probability of a live birth might be around 50%; if above 40, less than 10%. (The figures are always a bit squishy.) Without doing a thorough study, you can probably say that most women who resort to ivf will not have children of their own, although they will have huge medical bills and may end up traumatised by the experience.

    The underlying issue here is whether having a child of your own is a human right. I confess that I do not believe that it is.
  • David Page
    commented 2024-02-26 07:09:10 +1100
    Michael Cook, it is certain, however, that those who can only conceive Through IVF will no longer be able to have children. Do you deny that?
  • Maryse Usher
    commented 2024-02-25 23:25:06 +1100
    Trump is the only President who appeared at the March for Life while in office. He went for Hillary Clinton’s jugular on her pro-abortion policy in their election debate. It was beautiful to see. But he had seven prolife activist leaders coaching him. He seems to have faded on the issue and the IVF opinion shows he has lost his clarity on the tenets of the natural law. Possibly his former advisors could not instruct him on the other violations, such as IVF. Has there ever been a comprehensive research study done on how IVF persons have fared as the early generations have reached their 50s? It would be fascinating to know. I don’t have much hope that Trump is good on euthanasia, either, now.
  • Michael Cook
    commented 2024-02-25 21:21:30 +1100
    As I mentioned in the article, it is far from certain that freely available IVF will boost the birthrate. I referred to Japan, which has low and declining fertility and one of the highest percentages of IVF births in the world. One of the biggest contributors to low fertility is late marriage. IVF may (this remains unproven, I admit) encourage women to have children because they believe that they can always resort to IVF. But even IVF cannot stop the reproductive clock from ticking. More research will be done into this issue, I’m sure, as governments will be reluctant (at least I hope so) to pour money into counter-productive policies.

    The boo-word “conservative” doesn’t fit neatly into this conversation. Orange-man supports IVF and he is Conservative Ogre in Chief. Lots of other Republicans, too, But it’s good to call out compartmentalisation, thanks very much. Mercator aims to denounce that, too.
  • David Page
    commented 2024-02-25 18:51:19 +1100
    About 100,000 children are born each year through IVF in the US. But, with the remarkable ability conservatives have to compartmentalize their morality, they will attempt to destroy IVF treatment while lamenting the declining birth rate.
  • Michael Cook
    commented 2024-02-25 11:38:07 +1100
    Yes, that’s about right. He doesn’t appear to have any firm or clear ideas on most issues surrounding marriage. But he knows how to test the wind…
  • Steven Meyer
    commented 2024-02-25 11:09:05 +1100
    Michael Cook,

    What do I think about Trump coming out in favour of IVF?

    I think what I’ve always thought. He’s a shrewd politician.
  • Steven Meyer
    commented 2024-02-24 15:38:20 +1100
    This is a challenge to John Cleese. Ricky Gervais or any other comedian satirist out there.

    Come up with something more comical, more absurd than this or admit the Alabama Supreme Court has you beat. :)
  • Michael Cook
    commented 2024-02-24 15:20:40 +1100
    I see that Donald Trump has come out strongly in support of IVF.
    Below is what he said on Truth Social. What do folks think about that? https://au.news.yahoo.com/trump-calls-alabama-protect-ivf-193930765.html

    “Under my leadership, the Republican Party will always support the creation of strong, thriving, healthy American families. We want to make it easier for mothers and fathers to have babies, not harder! That includes supporting the availability of fertility treatments like IVF in every State in America,” Trump wrote on Truth Social.

    “Like the OVERWHELMING MAJORITY of Americans, including the VAST MAJORITY of Republicans, Conservatives, Christians, and Pro-Life Americans, I strongly support the availability of IVF for couples who are trying to have a precious baby,” Trump wrote.

    The former president called on the Alabama Legislature to “act quickly to find an immediate solution to preserve the availability of IVF” in the state after multiple IVF providers there paused treatments in the wake of the court ruling.
  • Maryse Usher
    commented 2024-02-24 08:40:16 +1100
    If these poor little frozen Ps are not children, what are they? They will grow into children … well, some. If so, what effects of suspended development have on these children, if they survive the deep freeze and then an unnatural implantation technique? I well recall the author giving a talk about the many problems of IVF back in the early 2000s. That was chilling, too.
  • mrscracker
    “A ruling by Alabama’s Supreme Court will have a chilling effect on the IVF industry”
    Yes, hopefully. And I hope it also makes people aware of what actually goes on in the IVF industry. Many otherwise decent Catholics are completely clueless about the actual process.
  • Michael Cook
    published this page in The Latest 2024-02-23 12:54:27 +1100