Rice University's premier undergraduate journal of scholarship in domestic and international policy.
Basma Bedawi
Apr 26
The Precedents and Aftermath of Alabama’s Supreme Court IVF Ruling
Photo by Charity Rachelle / The New York Times / Redux
On February 16th, 2024, Alabama made national news with its state Supreme Court ruling that all embryos, including those not implanted into a body, have personhood meaning they are legally considered equivalent to a person (Kurki 2023). Three Alabama couples underwent in vitro fertilization (IVF)—a process whereby an embryo is fertilized outside the womb before being implanted—in the state. After giving birth to their babies, each couple had several additional unused embryos, as is customary in this medical practice, which were cryogenically frozen within the clinic with the precedent that they could be used if the couples wanted more children through the procedure (Sharfstein 2024).
These extra embryos were destroyed in the clinic in December of 2020 in an accident at the clinic. As a result, the couples sued the clinic for negligence and for the Wrongful Death of a Minor Act. In initial trials, the use of the Wrongful Death of a Minor Act in this situation was struck down. The judge concluded that embryos which exist in vitro are not people or children for the purposes of the act and therefore, there was no claim that the couples could bring under that law. However, when the couples appealed to the Alabama Supreme Court, they ruled that the Wrongful Death of a Minor Act does apply as life begins at conception—whether in utero or not (Sharfstein 2024).
Alabama’s ruling that the death of an embryo in vitro counts as the death of a child means that in the eyes of the court all embryos are people; in vitro embryos have been granted personhood. In the wake of this ruling, many IVF clinics in Alabama, including the largest in the state, temporarily closed as they waited to see what the ruling would mean for their facility, doctors, and patients (Sharfstein 2024).
The idea of fetal personhood is not new; the path for a ruling like this has been laid for decades. In 1973, when Roe v. Wade was first decided, the idea of fetuses or embryos holding the rights of a person was not widely popular (Yousef 2024). By the late 80s and early 90s, the concurrent rise of the War on Drugs and the War on Abortion collided to change this. At the time, there was moral panic over the idea that the prenatal usage of crack cocaine could have adverse effects on babies. Poor, African American women were used as a scapegoat at a time when the group was a typical target for fear campaigns. The term “crack babies” was coined by the media and states began passing laws allowing women to be charged with child abuse for exposing their fetuses to illicit substances while they were pregnant. With this precedent that harming a fetus carried the same weight as harming a child, fetal personhood began to gain traction throughout the country. Currently, at least 11 states have laws defining fetal personhood, and similar bills are under construction in 13 states (Yousef 2024).
Even with this precedent set, the Alabama Supreme Court’s decision came as a surprise even to proponents of fetal personhood (Yousef 2024). A political firestorm has erupted in the wake of the ruling, with much of the Republican party attempting to balance support for IVF and their pro-life beliefs and Democrats asserting that this ruling is the exact kind of snowballing they expected from the 2022 Dobbs decision—the Supreme Court ruling that overturned Roe v. Wade (Lexie 2024). Hardline conservative organizations have long villainized IVF as being part of the big “fertility industrial complex,” but it was still not mainstream Republican opinion that the destruction of embryos inherent in IVF should be criminalized (Yousef 2024). After the ruling, the Senate GOP campaign arm advised those on the campaign trail to assert their support for IVF and push back against efforts to restrict access. Even after the State of the Union, Alabama Sen. Katie Britt emphasized that the Republican party supports IVF. However, this stance highlights the cognitive dissonance within the Republican party: if they believe life begins at conception, why is the destruction of embryos not murder in their eyes? Republicans have struggled to articulate what the difference truly is, settling into the idea that the destruction of these embryos is a negative side effect of IVF, but since the procedure supports the creation of life, it is a necessary evil (Lexie 2024).
In the wake of the ruling, the Alabama legislature and governor approved legislation that attempted to make it possible for fertility clinics to reopen without concern of lawsuits. The law created two tiers of legal immunity: if embryos are damaged, direct providers of fertility services cannot be sued or criminally prosecuted, and those who handle frozen embryos are granted limited protections. Patients can still sue those who handle the embryos if they are damaged or destroyed, but they may only receive reimbursement for the costs of the IVF. This policy does nothing to address whether these frozen embryos count as people, and the ruling continues to stand in Alabama (Jan 2024). As the situation unfolds, it is yet to be determined how exactly this ruling will manifest itself in Alabama and around the country.
The views expressed in this publication are the authors' own and do not necessarily reflect the position of The Rice Journal of Public Policy, its staff, or its Editorial Board.
