The mission of Issues in Perspective is to provide thoughtful, historical and biblically-centered perspectives on current ethical and cultural issues.

The Alabama Supreme Court clearly opened a new phase in the legal battle over when life begins.  Embryos created and stored in a medical facility must be considered children under the state’s law governing harmful death, the Court ruled.  The ruling involved three couples who had sued the Center for Reproductive Medicine, a fertility clinic in Mobile, for inadvertently destroying their embryos.  The plaintiffs argued that they were entitled to punitive damages under Alabama’s 1972 Wrongful Death of a Minor Act.  The Court argued that the embryos fell under Alabama’s definition of minors and that the negligence lawsuits could proceed.  The case now goes back to the State District Court for further litigation.

These three sets of parents had created embryos through in vitro fertilization (IVF) with the hopes of conceiving children despite their struggles with infertility. An Alabama clinic was responsible for preserving embryonic children in a subzero cryopreservation facility while the parents and embryos awaited implantation. One day in 2020, a patient from the hospital wandered into the storage area, which was unsecured. The patient unwittingly picked up the embryo container and suffered severe freezer-burn, which made the patient drop the container. Unfortunately, the embryonic children were destroyed the moment their container shattered on the ground.  The parents were devastated. In two different lawsuits, they sought to sue both the fertility clinic and hospital for the wrongful death of their children and for the negligent actions of the clinic.

Emma Waters, research associate for the Richard and Helen DeVos Center for Life, Religion and Family at The Heritage Foundation, summarizes the Alabama decision:  Justice Jay Mitchell and a concurring opinion by Chief Justice Tom Parker, argued that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”  In his concurring opinion, Parker applied the state’s laws about the sanctity of human life to the sanctity of unborn life, too. His opinion relied heavily on the theological and moral belief that children, no matter how small, have inherent worth and dignity. “In summary,” he argues, “the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) 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.”

Waters concludes that “the court’s decision does not prohibit IVF, nor does it directly prohibit the destruction of embryos. It does, however, extend personhood to embryonic children and provide parents with legal recourse if they believe that the fertility clinic, through careless actions, is responsible for the wrongful death of their child. In the aftermath of the decision, three Alabama fertility clinics have decided to suspend treatments for the time being . . . .”

The decision said nothing about the fate of other frozen embryos in Alabama.  The issue before the Court dealt with fertility clinics and their liability for embryo destruction.  For that reason, many Alabama clinics stopped doing in vitro fertilization (IVF) because of this liability issue that the embryo is life protected under Alabama law.  Therefore, the Alabama a case does have significant implications for the future of IVF.

The Alabama decision raises several profound questions.  Do human embryos deserve the same protections as human beings? Is there a difference between an embryo in the womb, an embryo in a petri dish, or one frozen in a fertility clinic?  When does life actually begin?

• First of all, what is IVF?  In-vitro fertilization is a procedure where, after taking fertility drugs, several of the wife’s eggs are removed from her body and the sperm provided by the husband, normally through masturbation. In a Petri dish, the eggs are fertilized by the sperm and the best one(s) are then implanted into the wife’s womb. The remaining embryos are either destroyed or frozen.
• Second, the Alabama decision highlights a major national dilemma: what to do with the more than one million embryos in storage across the US.  [Some estimates place that figure as high as 5 million.]  As Amy Dockser Marcus of the Wall Street Journal observed, “The quandary over frozen embryos’ fate is a byproduct of increasing demand for reproductive technology as more people delay childbearing to older ages, or have children on their own or with partners of the same gender.  IVF, introduced in clinics more than 40 years ago, is now a mainstay of family-building that accounts for some 2% of US births.”  IVF clinics often ask patients what they want to do with unused embryos.  Options include destroying them, allowing researchers to study them, or donating them to other people trying to have children.  Or, they can store them in frozen storage containers.  Those who do so pay storage fees of $500 annually, sometimes for decades.  Some clinics are running out of space to store them.  Therefore, the typical IVF cycle results in multiple dead and/or frozen embryos. And unlike in European nations, there are almost no laws in America regulating how many embryos can be created or destroyed, or how frozen embryonic human beings can be treated.
• Third, it is also important to see this case in light of the Dobbs Supreme Court decision of two years ago, which overturned Roe v. Wade.  There is no constitutional right to an abortion, Dobbs argued, but the issue is now a state issue and the various state legislatures decide whether abortion will be permitted within their respective state borders.  So, the Alabama court decision reflects the logic of Dobbs—the states decide on reproductive issues.
• Fourth, as Marcus reports, polling shows that many Americans support fertility technology.  Four in ten adults said they have used fertility treatments, or know someone who has, according to the 2023 Pew Research Center survey.  That was up from 33% five years ago.  The technology’s growing place in US life is clear in the experiences of politicians across the spectrum.  Former VP Mike Pence has talked about his wife’s IVF treatment.  Nikki Haley has said she used artificial insemination to have her son.

Ethicist and legal scholar, Robert P. George, recently summarized the controversial life of Sir Robert Edwards, Nobel Prize-winning pioneer of in vitro fertilization (IVF), who died in 2013 at age 87.  Today, there are literally millions of people in the world today who would not have been born had it not been for the IVF technology Edwards launched.  In his book, A Matter of Life, which Edwards co-authored with Patrick Steptoe, he described the embryo as “a microscopic human being—one in its very earliest stages of development.”  As George argues, what Edwards rejected was the sanctity-of-life ethic and the principle of the equality of human beings regardless of stage of development or condition of dependency.  For Edwards, human embryos did not yet quality for protection against manipulation and practices such as abortion and embryo-experimentation.  A part of his legacy as an IVF pioneer is the vast number of human beings destroyed or in a “state of suspended animation—a kind of moral limbo—in cryopreservation units in IVF clinics.”  They are frozen embryos—“in a frozen condition—neither dead nor, in any robust sense—alive.”  The important bioethicist, Leon Kass of the University of Chicago, has raised other concerns about Edwards and his IVF legacy.  Kass feared that IVF would “lead to cloning, genetic manipulation of embryos, surrogate pregnancies, and the exploitation of nascent human life as a research tool.”  Kass has been proven to be correct.  Human and genetic technologies, which IVF helped to spawn, have pushed the human race to the point of significant manipulation of life, not merely to deal with the matter of infertility, but to give parents options on the kind of child they actually want.  With significant audacity, Edwards once said that his work “was about more than infertility. . . [It was about] who was in charge, whether it was God Himself or whether it was scientists in the laboratory.”  Edwards believed that his IVF technology answered the question: “It was us.”

Ryan T. Anderson, president of the Ethics and Public Policy Center, argues caustically that “IVF itself treats children as products of technical manufacture. It thus fails to respect the equal dignity of human beings in their very origins. Or as some have put it, persons should be begotten, not made. They are to be welcomed as the fruit of an act of marital love. Relating to a child instead as a producer relates to a product is the seed of all the abuses of the IVF industry—the causal creation and destruction of “spares,” the filtering out of “defectives,” the selection for sex (boys) and other specs (eye color), the commodification of (often poor) women’s bodies as incubators.”

In conclusion, issues and practices associated with reproductive and genetic technologies fall under the stewardship responsibility of humanity to God.  In Genesis 1:26ff, God created humans—male and female—in His image and then gave them the responsibility to “be fruitful and multiply, and fill the earth and subdue it; and rule over the fish of the sea and over the birds of the sky, and over every living thing that moves on the earth (1:28).”  Verse 29 extends this dominion to plants, trees and seeds.  God affirms this dominion status, although affected by human sin and rebellion, to Noah in Genesis 9:1-2.  Because God is sovereign and humans have dominion status, human accountability is a necessary corollary.  This matter of accountability has powerful implications when it comes to reproductive and genetic technologies.  These technologies give humans power never realized before in history.  But because of human depravity, it is difficult to be optimistic about the ultimate use of some of these technologies.  In His common grace, God has permitted the human race to develop these technologies—but we must always remember that we are accountable to Him as to how we use them.  The sobering fact of human depravity looms over its use.

How then should we think biblically about IVF and the freezing of embryos?  Several conclusions:

1. Freezing sperm and eggs does not jeopardize the life of a human being, because before fertilization there is no human being.
2. However, embryo freezing is problematic if, as is most likely the case, in vitro fertilization (IVF) was used to produce the embryo in the first place.  Normally, IVF involves multiple fertilizations and thereby multiple embryos, with those not implanted in the womb being destroyed or frozen.  What happens to the remaining embryos that are not implanted or frozen is an ethical problem. Psalm 139:16 makes it quite clear that God values even embryonic life.
3. Embryonic life must be protected.  Since the embryo is a person in God’s eyes, the embryo has the right to protection from harm.
4. Although there is not reliable data yet available, it seems reasonable to conclude that frozen embryos will likely deteriorate over time so that they will not survive implantation.  Today, success rates with frozen embryos are lower than successes with fresh embryos.
5. Permitting women to be rigorously selective in the sperm they choose to ensure that they the “right child” is getting close to the ugly specter of eugenics.

See Jan Hoffman in the New York Times (23 February 2024); Ryan T. Anderson in First Things Daily Newsletter (29 February 2024); Emma Waters in First Things Daily Newsletter (27 February 2024); Amy Dockser Marcus in the Wall Street Journal (23 February 2024); an editorial in the Wall Street Journal (23 February 2024); Robert P. George in the Wall Street Journal (19 April 2013).