All Human Life Deserves Respect: IVF Doesn’t Change That
Fertility struggles can be devastating for many American families. The CDC estimates that 19 percent of married women aged 15 to 49 with no prior births cannot get pregnant after one year of trying. Moreover, talking about fertility struggles and solutions is not like talking about taxes or free trade; this is a deeply personal and often emotionally charged conversation, as family concerns ought to be.
In vitro fertilization (IVF) creates a new human being, or as is the usual practice in the United States, many new human beings. Contrary to popular belief, IVF is not creating the components for human life, but human life itself. Life begins at the moment of fertilization, also known as sperm-egg fusion. And that is the very process that IVF completes outside the womb.
Since there are misunderstandings about what IVF does, politicians are easily bullied by the media and interest groups that seek to capitalize on the confusion. In their headlong rush to neutralize the media’s misrepresentations about the Alabama supreme court’s decision allowing parents to sue negligent IVF clinics for wrongful death, even legislators who call themselves pro-life have overlooked the unfortunate dark side of this unregulated industry.
Every human being, regardless of her stage of development, possesses inherent dignity and rights. This includes the right to life and equal protection under the law. Yet IVF procedures in the United States routinely involve the creation of far more embryos than will ever be implanted or carried to term. These unique human individuals are then labeled “excess” or “surplus” and subjected to a fate that is nothing less than tragic.
What most families don’t know is that more than 85 percent of the children created through IVF will never be born. Some of these children are left in frozen nurseries indefinitely, while others are miscarried once transferred to a mother’s womb, or intentionally discarded and destroyed. The staggering cost of IVF is the millions of dead human children who are created to be killed or indefinitely frozen. Yet the American IVF industry is among the least regulated industries in the nation, operating with minimal oversight and inviting exploitation and abuse. Stories of mix-ups, mishandling of embryos, and unethical practices within fertility clinics are common.
The case that the Alabama supreme court ruled on, LePage v. Center for Reproductive Medicine, P.C., centered on an IVF clinic’s negligence in securing its cryogenic nursery. The parents of embryonic children claimed that the center had a duty to maintain constant security and monitoring of the cryogenic nursery. Yet, in December 2020, lax security policies enabled a hospital patient to gain access to the center’s fertility clinic via an unsecured entrance. Inside the cryogenic nursery, the patient took out several embryos. The extremely low temperatures of the storage caused freeze burns on the patient’s hand, leading to the unintentional dropping of the embryos, resulting in their deaths.
The parents of these children justifiably tried to hold the clinic accountable and sued under Alabama’s Wrongful Death of a Minor Act. The Alabama supreme court had established that an unborn child is a “minor child” under the statute, whatever that child’s stage of development. Neither side contested that precedent. The core legal question in LePage, then, was whether the court should reinterpret the law to introduce an atextual “extrauterine exception” that would exclude embryonic children created through IVF. The court understandably declined to take that extraordinary legal leap, which would unjustly treat the children in the cryogenic nursery as less valuable than any other unborn children. Instead, the court decided that yes, of course the parents of human embryos in an IVF clinic should have legal recourse if the IVF clinic negligently allows their children to be killed.
It’s important to note what the Alabama supreme court did not do: The court did not recognize the full legal personhood of embryos created through IVF and did not address the equal-protection arguments that the parents raised under the U.S. Constitution. The court also did not hold that IVF would be illegal in Alabama. It simply ruled that because all unborn children are protected by the state’s wrongful-death statute, parents could hold IVF clinics accountable for their failure to take due care of the embryos entrusted to them. The ruling is an extremely low bar to set for valuing human lives.
Following the Alabama supreme court’s ruling, Alabama IVF providers, unwilling to face legal scrutiny for possible unethical or negligent actions, capitalized on media hysteria by pausing IVF procedures until new rules could be established. The fertility industry hoped that misinformation about the ruling would lead to an even more unregulated legal landscape, allowing clinics to pursue profits regardless of the duties owed to IVF children and parents. And tragically, the Alabama legislature played right into their hands.
Not only did Alabama’s new IVF legislation withdraw the existing legal protections recognized in LePage, but it also granted an astonishing blanket civil and criminal immunity to the fertility industry. Now, not only negligent but even intentional wrongful acts — such as the purposeful killing of human beings created through IVF — are immunized under Alabama law. That means that in Alabama, embryonic human children created by IVF can be killed for any reason with impunity. In addition, under Alabama’s new law, parents have no recourse against the abuses of the profit-driven IVF industry, even if clinics act recklessly or engage in what would otherwise be criminal conduct. We would not stand for this type of immunity in any other part of our medical system.
Stripping legal protections from embryonic human beings simply because they were created through IVF is contrary to the 14th Amendment to the U.S. Constitution, which guarantees that no state shall deny to any person the equal protection of the laws. In Alabama, children created through IVF are no longer protected equally under the law, because they no longer enjoy the protections of civil and criminal law that exist for born persons or preborn persons in the womb.
This new law also stands in tension with the Alabama constitution, which acknowledges the state’s goal “to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” The Alabama constitution further acknowledges the state’s duty “to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.”
If the baby in utero at three days old is a human, then the baby in a petri dish at three days old is a human, too. Human rights are universal and inalienable. Each person, from the tiniest embryo to the elderly, has incalculable value and deserves guaranteed legal protection. The foundational moral truth that human life begins at the moment of fertilization is written on our hearts and backed up by basic science found in any biology textbook. IVF practitioners ignore this truth and violate human rights every day.
Infertility can be an incredibly painful burden and is increasingly common. But the solution cannot be to deny legal protections to human embryos or to allow them to be frozen or killed at will in America’s IVF industry.
Our way forward must be to help women and families through innovations such as NaProTechnology, which treats underlying conditions that may undermine fertility. Having children is a beautiful and amazing thing that we should encourage and make easier, through both culture and public policy. But no one is promised a child. Our future must support the creation and well-being of families while respecting the basic human rights of every member of the family, regardless of their age or level of development.
Lila Rose is the founder and president of Live Action. Josh Craddock is an affiliated scholar with the James Wilson Institute.