IVF Needs More Regulation

How small is too small to care? That is the fundamental question now facing the citizenry in a post-Roe world. Donald Trump is reportedly among those who see fifteen-week-olds as legally discardable and who think protecting six-week-olds is a “terrible mistake.” President Biden refuses to embrace any clear timing limits on abortion. To its credit, in a recent decision on the protection of human embryos, the Alabama Supreme Court did not flinch from the logic, made famous by Dr. Seuss in Horton Hears a Who, that “a person’s a person, no matter how small.”

Dr. Seuss is not quoted in the 131 pages of opinions that accompanied this decision, which allows a civil case centered on the haphazard destruction of frozen human embryos to proceed. But the fact that Scripture and religious history are discussed in a concurring opinion has sparked the usual howls that theocracy is on the march.  

The media generally does a poor job of covering appellate law, with the Washington Post’s dire warning of a “scary future for women’s healthcare” being fairly typical of the offerings on this story—a breathless parade of horribles and relatively little on the case itself. So, what did just happen?

The case involved a number of embryos, created by in vitro fertilization (IVF), stored unsecured in a hospital. Their lives ended when an unrelated patient at the hospital walked into the “cryogenic nursery” and dropped them on the floor. Three couples sued under a longstanding civil statute, the Wrongful Death of a Minor Act, seeking financial compensation. A district court dismissed the claims, ruling that embryos in a freezer did not qualify as minor children under the act.

The Alabama Supreme Court reversed the district court. David French called the legal reasoning “very, very, very straightforward” on the podcast Advisory Opinions. The court had previously held that the statute applied to unborn children, and no party was seeking to reverse that precedent. Thus, the legal issue became whether the housing of the embryonic children outside their mothers’ wombs made the statute inapplicable. Six of the nine justices opined that “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.” They declared that they are children “from fertilization.”

The majority opinion and the multiple dissents and concurrences thoughtfully discuss a variety of relevant issues—including the original public meaning of the relevant statute (which dates from 1872); the role of unchallenged precedent; the relationship between civil and criminal statutes; and the effect of a 2018 constitutional amendment addressing “The Sanctity of Unborn Life.” It is on that final point that Chief Justice Tom Parker offers, for himself alone, an extended concurrence addressing the interaction of the law and Judeo-Christian tradition. 

In his discussion of the “sanctity” concept, Parker partially summarizes it as the theory that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.” At one time, even a religiously unorthodox founder like Thomas Jefferson could agree with this—he of “I tremble for my country when I reflect that God is just, that his justice cannot sleep forever.” Today, publicly discussing the biblical influences on our legal system draws bewildered responses like “Is that allowed?” 

Parker concludes, 

All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence. Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image.      

The conclusion that Parker draws about the role of the state constitutional provision is debatable—and, indeed, other justices engage with him on the point. While the majority opinion is far less expansive, the constitutional amendment is noted as supporting the decision.  

Nevertheless, most of the justices (on all sides of the decision) strongly agreed on the need for the state legislature to step in and regulate an IVF industry that, as Parker quotes a legal scholar, resembles the “Wild West.” Parker devotes multiple pages in his solo concurrence to cataloguing and lauding the IVF regulatory regimes of several other countries.    

“Alabama Chief Justice Calls for More Regulation, Looks to Europe as Model” would be an accurate and interesting headline, but it is not one you will see when the media narrative is focused on the fear of an all-encompassing extremism driven by drawling Bible-thumpers. One thinks of the progressive media’s reticence to acknowledge that the late-term availability of abortion under Roe put the United States in a motley crew along with China and North Korea while most countries were far more limiting.  

Before the Dobbs decision, the pro-life movement could focus on unborn babies that looked like born babies but were treated as disposable non-persons. Protecting them was not always an easy case to make, as the hardness of the human heart and our ability to obfuscate are great, but it was certainly a visually easier case to make than defending life at its earliest stages. Historically, the Alabama Supreme Court may have struggled to recognize the image of God in black faces, but today it is leading the way by affirming, in a limited but important context, the human dignity of those too small to even have a face.    

John Murdock is an attorney who writes from Texas.   

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Image by Chris Pruitt licensed via Creative Commons. Image cropped.