In a case that has, appropriately, drawn enormous national attention, the Supreme Court of Alabama ruled on February 16th in LePage v. Center for Reproductive Medicine that frozen embryos can be considered children under state law. The decision was issued in a pair of wrongful death cases1 brought by three couples who lost their frozen embryos in an accident at a fertility clinic.

Arthur Caplan, PhD
NYU Grossman School of Medicine

The court cited anti-abortion language2 in the Alabama Constitution to rule that an 1872 state law allowed parents to sue over the death of their lost “children,” because embryos are made in the image of God. The court added that its decision “applies to all unborn children, regardless of their location.”

“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics.”

This decision can be read as granting all embryos, even those with devastating abnormalities, the same rights as other children in Alabama. Certainly, no embryo can be
destroyed, since that would constitute homicide. In fact, once created, it could be argued that the court sees some duty to make sure embryos are placed in an environment (a uterus) where they can become full-fledged adults, since intentionally creating “children” only to leave them frozen in suspended animation
likely infringes their right to life.

The Alabama court opinion is hugely important. It reflects national efforts to end all abortions through legislation by arguing for fetal and embryonic personhood and, thus, for fetuses and embryos to have the rights of children. Also, it may well inspire other state courts to issue similar rulings.3

A threat to the rights of women

The decision is quite simply wrong, and if allowed to stand or, worse, to expand to other locations, it would destroy the rights of women to adequate reproductive healthcare.
The decision is wrong for other reasons. It invokes a particular view of embryos based on a contentious reading of the crucial text of a single religion. This is an obvious imposition on the rights of those who do not subscribe to this particular religious interpretation.

Nor does the court follow known facts about embryos. Conception does not always create life, much less a baby. Almost half of conceptions do not implant. Of those that do, 15% miscarry4 due to genetic anomalies incompatible with life. Not all conceptions have the capacity to become actual children.

Indeed, embryos are not, contrary to the opinion of the Alabama court, tiny “children.” That view, preformationism,5 popular in late medieval times, has been completely replaced by the knowledge that an embryo contains a set of genes that is sometimes able to produce instructions for a potential child but only if it is not misprogrammed and if it is implanted in a uterus where it can receive the requisite signals from the mother to begin development.

An embryo is a potential person. An implanted embryo is a possible person. Making up factual claims to reach ideological or religiously inspired conclusions is to use bad legal reasoning to reach deeply flawed conclusions about reproduction and human development.

Indefensible and dangerous

The consequences of the absurd Alabama ruling for women and their partners are indefensible and even dangerous.

As many women’s advocacy groups and medical groups have complained, women or couples seeking in vitro fertilization6 (IVF) will face many obstacles following this declaration that all embryos are children. Even the Alabama legislature, under huge pressure from IVF clients and programs, stepped in and tried to write legislation that would carve out IVF and the associated common destruction of overproduced, malformed, or abandoned frozen embryos, but the Supreme Court’s decision is clear and cannot be overridden in that way. The Alabama legislature cannot declare that murdering children in some circumstances is acceptable.

It’s hard to argue that IVF is not pro-life. It’s hard to argue that people who desperately want to have actual children should find it difficult to use the technique. The Alabama decision is going to mean the end of IVF.

That has a political consequence that I don’t think can be sustained by proponents of fetal or embryo personhood. There is just too much momentum to support the use of IVF to try to create lives to make that a politically viable situation.

In addition, treating embryos as children means the end of preimplantation genetic testing (PGT), which helps ensure that the embryo selected for transfer in IVF has the correct number of chromosomes, thereby reducing the chances for a failed IVF cycle and the chance of miscarriage. This testing is now increasingly used to find monogenic/single-gene diseases such as cystic fibrosis, Tay-Sachs disease, sickle cell disease, and Huntington’s disease. No PGT will be permitted in Alabama, since no embryo destruction or failure to implant “children” would be allowed.

Should a woman undergo a pregnancy that might put her life at risk, her doctors, if in Alabama, would have to try to save both her and an embryo even if her life hung in the balance. And a woman who became terminally ill at any stage of pregnancy would not have her wishes or living will honored due to the presence of another “person inside her.” Women could be forced, even when brain dead, to serve as incubators in ICUs while doctors try to save embryos, no matter the women’s wishes, those of next of kin, or the long odds, or the length of time required to try.

Even contraception could be restricted under the holding that all embryos from fertilization are children. Some pro-lifers insist that hormonal birth control and IUDs act by making it impossible for an “embryo” to implant. Medical experts do not consider preventing implantation an abortion, nor do they even agree that this is how these forms of birth control work. Still, adding bad science to more bad science may produce severe restrictions on contraceptive choices.

The decision to declare embryos children is not based on science but on religion and a long outdated state law. It is not remotely consistent with how modern biomedicine understands what embryos are and how they work. Potentiality and possibility are not the same scientifically or morally as actuality.

The consequences of this muddled and indefensible ruling are dire. Women and those who seek to treat them in Alabama will find themselves denied access to technologies that could help them make actual children, with restricted access to testing and contraceptives that reduce the use of abortions, while also putting their patients’ lives at risk in other situations.

Lawyers have an old saying: “Bad facts make bad law.” The Alabama Supreme Court has shown just how true that wisdom is.

Arthur Caplan, PhD ([email protected]), is the Drs. William F. and Virginia Connolly Mitty Professor of Bioethics and founding head of the Division of Medical Ethics at NYU Grossman School of Medicine.


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