The Alabama Supreme Court has legally equated frozen embryos with born children, prohibiting their destruction and establishing serious legal consequences if it is done. “Unborn children are ‘children’ under the [law], without exception based on developmental stage, physical location, or any other ancillary characteristics,” said Jay Mitchell, one of the court’s judges.

This ruling resolves a lawsuit filed by three couples who lost their frozen embryos in 2020. A patient, after entering the place where the embryos were stored in a fertility clinic, dropped them to the ground, causing their destruction.

The lawsuit was filed under the state’s Wrongful Death of a Minor Act and the Alabama Supreme Court ended up ruling in favor of the plaintiff couples. It ruled that frozen embryos have the same consideration as born children.

Seven of the court’s nine judges backed that decision, which will be appealed to a state appeals court.

How will it affect in vitro fertilization treatments?

The ruling does not expressly ban or restrict in vitro fertilization (IVF), but it raises concerns about the handling and storage of embryos in reproductive clinics.

Assisted reproduction techniques such as IVF or intracytoplasmic sperm injection (ICSI) involve obtaining more embryos than will eventually be transferred to the uterus for gestation.

Surplus embryos, after discarding those of doubtful viability, are cryopreserved and stored in clinics, waiting to be claimed by their parents for new gestation attempts. If they are not claimed, they are transferred to other couples or used for research, which causes their death. Many of them, with an uncertain fate, are preserved indefinitely.

Several Alabama fertility clinics have already suspended treatments because of the potential legal risks they face by freezing embryos and claim that the ruling could have negative consequences for fertility treatments both in Alabama and in other states.

Other clinics have decided to continue extracting and freezing oocytes, but they are not fertilizing them. If embryo freezing ended up being a legally punishable practice, it would radically change the process of in vitro fertilization. The cryopreservation of embryos would be replaced by that of oocytes, which would be thawed and fertilized before each transfer for gestation.

Tom Parker, Chief Justice of the Alabama Supreme Court, thinks that the number of embryos that can be generated and implanted in women should be legally limited, as is the case in other countries such as Italy, Australia and New Zealand.

The University of Alabama hospital has announced in a statement that it is stopping assisted reproduction treatments: “We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments.”

On the one hand, the Medical Association of the State of Alabama has stated that “the significance of this decision impacts all Alabamians and will likely lead to fewer babies – children, grandchildren, nieces, nephews, and cousins – as fertility options become limited for those who want to have a family.”

On the other hand, Alliance Defending Freedom, a Christian legal group, has described the Alabama ruling as a “tremendous victory for life.” “No matter the circumstances, all human life is valuable from the moment of conception,” spokeswoman Denise Burke said in a statement to the BBC. “We are grateful the Court correctly found that Alabama law recognises this fundamental truth.”

The question of when an embryo is legally considered a person is a deciding factor in many state restrictions on abortion. When the United States Supreme Court overturned Roe v. Wade in 2022 it gave the freedom for each state to legislate regarding abortion, as we already published in our Observatory.

Bioethical assessment

The fact that many people with infertility problems aspire to parenthood does not constitute a right in itself. This must be promoted by providing the necessary medical care, but without assuming the unacceptable consequences of the indiscriminate manipulation of human embryos, which will end up being destroyed or abandoned in freezers.

The human nature of the embryo from the moment of fertilization is now fully accepted by the scientific community. The new findings on the evolution of the human embryo in its first stages of development remove any doubt about the existence of an individual of our species from the very moment of conception.

It should not surprise anyone that the right corresponding to this human being is claimed, even in its initial stages of development. What is strange is that such different criteria are applied in the treatment of one or another human beings based only on their degree of maturity.

The generalization of attacks against embryonic human life in biomedical research and assisted reproduction seem to have validated the disregard for the life of a human being. This will always be invalid and unacceptable, especially if it concerns its most fragile and defenseless form.

 Julio Tudela and Ester Bosch

Bioethics Observatory – Institute of Life Sciences

Catholic University of Valencia

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