Last month, a decision from the Alabama Supreme Court recognising embryos as unborn children spurred the legislature into quick action, seeking to protect fertility clinics from liability. As a result of this ruling, many of these clinics shut down temporarily. Nevertheless, the state’s intervention only touches on the surface of larger ethical and legal complications that are sure to arise as the concept of ‘personhood’ starts to gain traction.
The Alabama Supreme Court’s ruling on February 16 determined that embryos created during in vitro fertilisation (IVF) processes can be considered as unborn children. This would mean that destruction of these embryos constitutes implication in the state’s Wrongful Death of a Minor Act. In reaction to this, the Alabama legislature promptly approved emergency legislation that grants civil and criminal immunity to IVF providers.
This issue is far from a conclusion, with the concept of the legal rights linked with personhood being attached from the earliest stages of development having far-reaching impacts. Conceivably, this could influence both reproductive technologies and certain types of contraception. An example is provided by the inherent risks involved in the freezing and thawing processes integral to IVF, with the removal of a cell from an embryo for genetic screening potentially leading to damage that renders the embryo unusable for later transfer procedures.
The balancing act at the heart of this debate comes down to the question of the extent of risk that society is prepared to accept versus the perceived benefits of a particular activity. Here, the legal status assigned to embryos, the power of the state interest in protecting them, and the interest of the state in increasing the birth rate through IVF will all play a crucial role in shaping the regulations eventually imposed.
Pursuing this vein of thought further, what if we were to consider embryos, from a legal standpoint, as having the same status as a born individual? What then would be the balance between the risks associated with IVF and the benefits it provides?
One surprising aspect of this scenario is that some proponents of embryonic personhood who also argue for protection of IVF services often appeal to the aim of helping families have children. One justification represented is the contrast between abortion, which is an intentional act of ending life, and IVF, which, despite the inherent risk of loss of life, is fundamentally an attempt to create it.
The wider aspects of this debate are certainly complex and highly contentious, but we must hope that future lawmakers take all these multifarious considerations into account.
For more details, Jonathan F. Will, a professor of law and director of the Bioethics & Health Law Center at Mississippi College School of Law, is the author of the initial analysis, which can be found here.