The Alabama legislature voted on Thursday to give doctors who provide in vitro fertilization (IVF) full civil and criminal immunity for any death or damage to embryos.

Alabama Supreme Court Ruling

The Alabama Supreme Court ruled on Feb. 16 that “extrauterine children” are in fact – under Alabama law – children. Justice Jay Mitchell wrote that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”

The ruling results from a case brought by the parents of several embryonic children, who were created through IVF. These embryos were kept in a cryogenic nursery at a fertility clinic operated by the Center for Reproductive Medicine. In Dec. 2020, a patient entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos were kept freeze-burned the patient’s hand, causing the patient to drop the embryos of the floor, killing them.

As a result of the incident, the parents brought claims against the fertility clinic under Alabama’s Wrongful Death of a Minor Act. The Alabama Supreme Court agreed with the parents, concluding that “the relevant statutory text is clear: the Act applies on its face to all unborn children, without limitation.”

The court’s reasoning was simple. Justice Mitchell wrote,

An unborn child is a genetically unique human being whose life begins at fertilization and ends at death. … An unborn child usually qualifies as a ‘human life,’ ‘human being,’ or ‘person,’ as those words are used in ordinary conversation and in the text of Alabama’s wrongful-death statutes. That is true, as everyone acknowledges, throughout all stages of an unborn child’s development, regardless of viability.

Alabama IVF Bill

Several clinics that provide in vitro fertilization in Alabama have temporarily closed, ostensibly, because of the recent ruling by the Alabama Supreme Court. The Alabama legislature has proposed legislation intended to prompt them to reopen.

Alabama Senate Bill 159 (SB 159) is short and sweet. It contains just a few brief sentences on three pages. It states that “no action, suit, or criminal prosecution for the damage to or death of any embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.”

Both the Alabama House of Representatives and state Senate have introduced and passed identical versions of the bill. Now, according to Politico, “the two chambers … must swap their bills for final passage.” Both chambers are expected to pass the bills, and Alabama Gov. Kay Ivey has indicated that she supports the bill.

Concerns Over SB 159

Legal scholars and pro-life advocates alike have expressed deep reservations about Alabama’s SB 159, and the IVF industry more broadly.

As just one example, Carter Snead, the Charles E. Rice Professor of Law at Notre Dame and the Director for the Notre Dame Center for Ethics and Culture, cautioned Alabama lawmakers against passing the bill.

“In an apparent rush to respond legislatively to a firestorm of controversy fueled by exaggeration and misrepresentations about facts and law for partisan political gain, my home state of Alabama is on the cusp of providing blanket civil and criminal immunity for anyone who kills or harms an embryonic human being in the context of IVF treatment,” Snead wrote.

He added:

For a state legislature that has courageously defended the intrinsic equal dignity of every human being regardless of age, size, location, condition of dependence, or social status, this is a shocking error in judgment that will have catastrophic results, including a cascade of unintended harmful consequences for IVF patients.

This is not only unjust, but unnecessary to protect the availability of IVF for those who want it. The better path is to slow down and study this highly complex question carefully.

Moral and Ethical Concerns with IVF

More broadly, many have pointed out the moral and ethical concerns associated with IVF.

Children’s rights advocate Katy Faust wrote a piece for WORLD highlighting some of these problems.

She writes, “The same mentality and talking points are at work in both the push for abortion and the push for reproductive technologies. What mentality is that? That children exist for adults, not the other way around.”

“Due to the ‘freezing, testing, transferring, and discarding’ [of embryos created from IVF], … only a fraction of the babies [that are] manufactured survive the process. … Only 7 percent of lab-created children will be born alive,” Faust explains.

“By the numbers, the baby-making industry is responsible for the destruction of more little lives than the baby-taking industry.”

Indeed, as Stephen Austin writes in Public Discourse, “In 2019 out of a million embryos involved in IVF cycles, 84,000 made it to term – the remaining 900,000 did not. By comparison, in the same year, the CDC reported 629,898 abortions. Both figures are inaccurate and out of date, but the basic comparison holds: death by IVF probably exceeds death by abortion.”

In an article in Breakpoint, John Stonestreet pointed out that the decision from the Alabama Supreme Court was “long overdue, given that approximately 1.5 million embryos left over from IVF services are currently stored in freezers in the United States, the vast majority of which are destined for either destruction or donation or medical testing.”

He notes that even though it is technically possible for IVF to be done in a way that does not lead to the creation of “excess” embryos, “given the costs of each IVF cycle and the almost 50% failure rate, most couples and clinics choose the more ‘efficient’ process. As a result, the number of ‘excess’ embryos suspended in time and development tops a million.” He adds,

Some of these embryos may be implanted, but most will not. … The vast majority are treated as property and not children.

Ryan T. Anderson, president of the Ethics and Public Policy Center, also pointed out the human cost of IVF in a piece for First Things.

“Doctors don’t always impress on [couples] the human costs of IVF,” Anderson writes. “For one birth, doctors might create ten to twenty embryos, transfer several of the ‘most promising,’ freeze the rest, and if more than one implants, abort the others. So the typical IVF cycle results in multiple dead and frozen embryos.”

He adds,

And unlike in European nations, there are almost no laws in America regulating how many embryos can be created or destroyed, or how frozen embryonic human beings can be treated.

To some, this casual disregard is no accident, because IVF itself treats children as products of technical manufacture. It thus fails to respect the equal dignity of human beings in their very origins. Or as some have put it, persons should be begotten, not made.

At Focus on the Family, we affirm that husbands, wives and doctors can take steps to lessen concerns associated with IVF if used only by a married man and woman with no third-party involvement (no donor sperm, donor eggs, or surrogacy) and the process creates only the number of embryos that can be safely implanted in the mother’s uterus at the time they’re produced (none are frozen for future IVF cycles).

The Alabama Supreme Court rightly concluded that human life begins at fertilization. This includes children both inside – and outside – the womb.

Because of the IVF industry, 1.5 million children are frozen in freezers across the country, and hundreds of thousands of human embryos are destroyed annually.

The moral and ethical problems with IVF need to be more widely discussed in our culture. Thankfully, the Alabama Supreme Court’s decision gives all of us the opportunity to do just that.

Related articles and resources:

IVF: Moral and Ethical Consideration


Resources: Infertility

Photo from Getty Images.