Legal scholars are rebutting claims from Democratic politicians that the overturning of Roe v. Wade led to the controversial decision of the Alabama Supreme Court on the personhood status of embryos created for in vitro fertilization, saying the decision hinged on patient rights rather than abortion law.
Numerous Democrats have claimed the Alabama decision, which found that cryogenically frozen embryos are protected under the state’s Wrongful Death of a Minor Act, was a result of the 2022 Dobbs v. Jackson Women’s Health Organization Supreme Court decision that returned jurisdiction over abortion regulation to the states.
“This is a direct consequence of Donald Trump overturning Roe & exposes Republican politicians’ hypocrisy on IVF,” Sen. Elizabeth Warren (D-MA) posted on X.
Earlier this week, Senate Majority Leader Chuck Schumer (D-NY) called the decision a “direct result” of the Dobbs decision.
Not motivated by Dobbs
The majority opinion in the case references Dobbs three times but only for historical context on early American jurisprudence on pregnancy. Legal scholars said the opinion’s logic regarding the personhood of embryos was not related to the Dobbs decision.
O. Carter Snead, a University of Notre Dame law professor specializing in the ethics of biotechnology, told the Washington Examiner that Roe did not change the broad jurisdictional authority of states to regulate medicine, including regulating embryology.
“There are states that have banned embryo-destructive research for a long time [under] Roe and before Dobbs,” Snead said. “There was never a suggestion that there was a constitutional right to IVF. There was never a suggestion there was a constitutional right to engage in embryo research that resulted in the destruction of embryos.”
Abortion in the Roe era, according to Snead, “was an exception to the general rule that states have plenary authority to regulate the practice of medicine within their borders.” This changed following the Dobbs decision, allowing states to regulate abortion much like other medical and reproductive health services.
Several states have regulations on medical practice and research that grant special protections to embryos.
Louisiana, for example, is the only state that has legislation recognizing the personhood of extrauterine embryos and prohibiting their destruction. Only embryos that have not undergone cellular division within the past 36 hours, except when the embryo is in a state of cryogenic freeze, can be considered nonviable and destroyed.
Similarly, South Dakota explicitly prohibits research using human embryos. Arkansas, Kentucky, and Oklahoma ban the use of state funds for human embryo and therapeutic cloning research.
A patients’ rights case, not reproductive freedom
While the Alabama decision is being interpreted as a case about access to reproductive technology, legal scholars say it really should be read as a case on patient rights.
The controversial case stemmed from the accidental destruction of five frozen embryos created for IVF in a cryogenics lab in Mobile. According to the case file, a non-IVF patient at the affiliated hospital where the embryos were stored wandered into the cryogenics lab through an unsecured door and picked up the embryos. The patient quickly dropped the frozen embryos after suffering from a freezer burn.
The six former IVF patients, three respective couples, who were genetic parents to the embryos, sought legal redress under the state’s Wrongful Death of a Minor Act. The court had ruled in 2011 and 2012 that the state’s wrongful death statute applies to children in utero, which became an essential precedent for the case.
“It wasn’t malpractice, but it was tort law that gave rise to this Alabama decision,” Snead said.
Denise Burke, senior counsel with the conservative legal advocacy group Alliance Defending Freedom, told the Washington Examiner that the Alabama court made the right call in favor of parental rights in this particular case.
“The Alabama Supreme Court recognized that every life is valuable — including unborn children,” Burke said. “The opinion does not prohibit fertility treatments, including IVF. All the court’s opinion does is protect parents and unborn children under the Alabama wrongful death statute.”
Maryanna Basic, founder of patient information resource Fertilitywise, told the Washington Examiner that she agrees that the insecurity of the cryogenic facility is “really the crux of the issue.”
“I have not reviewed any of their security or audit files, but I would expect that you would have some type of controls … to mitigate the risk of what you have in your possession, right? Just like at a bank,” Basic said. “That’s the level of control you would expect.”
Destruction of embryos
Advocates of IVF note the destruction of unused embryos after a successful transfer and implantation is part of the standards of care, making the sweeping declaration in the ruling severely limiting for the practice of IVF in most states.
But, as Snead noted, the parents of the embryos in this particular case did not give consent for their genetic offspring to be disposed of or destroyed.
The case “actually involves IVF parents trying to vindicate their own interests and be compensated for a loss they suffered by virtue of the negligence of an IVF clinic, which relates, of course, to the protection of IVF patients,” Snead said. “Somehow [the case is] being spun into a nefarious effort to restrict access to reproductive freedom.”
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Basic disagreed with the majority opinion that embryos are “extrauterine children” but said they are human cells, distinct from a nonfertilized egg. She said she was taken aback by the outcome of the case because it has been a distraction from the patient protection matters in the case.
“I am surprised [the majority opinion] went in the direction that it did to the point that the access to care for patients is at risk,” Basic said. The security of the facility “is where the case really should have stayed.”