A Small Group of Cells Now Have the Same Rights as You and I
Alabama’s ruling on fetal personhood
Dear Stork’d Family,
Everyone deserves to have a family.
I would be hard pressed to find someone who does not believe the above statement is true. It is a fundamental need for humans to love and be loved. Core to Maslow’s hierarchy. It is written into our evolutionary history, into our brain structure, our biology, how we have structured cultures and societies throughout time.
Love and family are fundamental.
And yet, if you live in the United States, this basic need, along with several other critical ones like agency, independence, safety and control over your own body and destiny, are actively under attack.
As you have most likely read, the Alabama state senate has ruled that embryos are “children.” By bestowing personhood on something that is not yet alive, Alabama has upended ... well everything. It has set the scientific gains made in fertility treatment and specifically IVF back 43+ years (the age of Elizabeth Carr, the First IVF baby in the US.) It has criminalized fertility doctors, patients who intend to be parents, nurses and embryologists. By defining an embryo as an “extrauterine person”, the Supreme court is making it impossible to build a family using IVF.
How does IVF even work?
For those lucky enough to have never experienced IVF, let me share a very quick, overly simplified primer about pregnancy, menstruation and IVF from someone who is not a doctor:
Most women ovulate as part of their monthly cycle ( I say mostly because irregular ovulation can be one reason to use IVF). When you ovulate, your body develops some of its existing eggs and ultimately releases one. If you time heterosexual intercourse correctly, this egg meets up with a sperm, forms an embryo, and ultimately attaches to the uterine wall. If all goes well, that embryo grows and develops. If it does not attach or does not grow, it is shed along with the uterine lining in your cycle. Which is to say that even when intentionally trying to get pregnant with a partner, if an embryo doesn’t “stick” it is not viable. There is no baby. Simply creating an embryo “naturally” is not sufficient to create a live birth.
When doing IVF, a reproductive endocrinologist works with a patient to prescribe a series of hormones which recruit not one egg but (hopefully) many by growing many follicles at the same time. A follicle is a sac that grows an egg. Once enough have grown to the right size, that doctor performs a minor surgery to extract the follicles. Not all follicles will have eggs, and not all eggs will survive the extraction. So even if you grow 15 follicles, you may only have 10 eggs to work with. The math gets worse with age.
At this point, you can freeze those eggs to store for later use - aka Egg Freezing (check out egg freezing episodes here or here). Or the embryologist can mix those eggs with sperm and create embryos.
Not all eggs will become embryos and not all embryos will grow to become more “viable” blastocysts. This loss rate is what we refer to when those going through IVF stress about “IVF Math”. Depending on age and eqq quality, those 15 follicles may only become 3 embryos. See below.
The statistics get worse by age or may change depending on other factors like endometriosis, male factor infertility or PCOS.
For this reason, it is common practice to “bank” embryos to ensure you have enough made to result in a successful pregnancy and enough for future children should you want them. If you are lucky enough to get more embryos than you need, you can donate to science, discard, or donate them to someone else to use through “embryo donation” or “embryo adoption.”
When it comes time to implant an embryo, just as in a “natural cycle,” not all embryos will stick (in the infertility community, there is a lot of superstition about eating french fries or pineapple after a retrieval or implantation to help it “stick”.) It may take several implantations before one becomes a viable pregnancy.
I hope you can see where I am going with this. It doesn’t take more than a few paragraphs of an overly simplistic description of how a female body works and what IVF is to see that an embryo simply isn’t a guaranteed future baby, let alone an “extrauterine person.” The odds are stacked against each embryo from implanting.
Essentially, a basic understanding of math, biology and even logic indicates that this ruling is out of bounds scientifically. An embryo simply isn’t a person.
Effectively, this ruling impacts any and all couples experiencing infertility in Alabama, as well as solo parents like myself, cancer patients who may freeze eggs or embryos prior to treatment to preserve fertility, and gay and lesbian couples who use sperm or egg donors.
Here is where the nationwide panic sets in - if considered a person, what happens when an embryo doesn’t “stick” - is the patient or the doctor charged with manslaughter?
Let’s talk hypotheticals:
If you have embryos, are you legally required to use them? Would you be required to donate them? Forced donation effectively equates to forced adoption. What are the implications for patients who want to move their embryos across state lines? What about those who are experiencing a miscarriage (1 in 4 pregnancies results in miscarriage?) Are they to be prosecuted for the loss of life? Further, this ruling will inhibit patients from pursuing actions that might prevent miscarriage, such as testing embryos before implantation. Embryos that pass genetic tests are significantly less likely to result in a miscarriage. Does this mean that if you test an embryo and it is not compatible with life, you are still required to implant it even knowing it will result in miscarriage or infant loss? How will this impact maternal care? What about taxes? Are embryos to be declared “dependents?” What about divorce? Should one pay child support on embryos? These questions only scratch the surface with the number of ethical dilemmas presented by this ruling.
To some extent the questions above are moot. The hypotheticals are so legally complicated that although this new ruling doesn’t ban IVF, the hospitals in Alabama have already shut down IVF treatments.
Let’s talk numbers:
According to the CDC, 20% of all married couples between the ages of 30 and 39 will experience infertility. Nearly 2% of all births annually in the US are the result of IVF. With approximately 5.1M people in Alabama, this means that as many as 500,000 people in Alabama - including married couples between the ages of 20 and 45, gay and lesbian couples and singles, have now lost their chance to have children.
Let’s talk hypocrisy:
At a time when politicians are trying to compel and / or force more women to carry babies, it’s ironic to effectively ban the science that enables those intended parents who desperately want to become parents from doing so. Aka, for those politicians who are pro- life, IVF is one of the best tools to create life. For those who are pro-choice, IVF is about creating more choices for more families.
Let’s talk other implications:
Religious freedom: this ruling is partially fueled by the Christian Nationalism movement. In his opinion, Chief Justice Tom Parker wrote, “even before birth, all human beings bear the image of God and their lives cannot be destroyed without effacing his glory.” Gone are the days when church and state were truly separated. I shudder to think about the implications for a nation that is slowly eroding this foundational division.
Gay family building - without IVF, Gay and Lesbian couples who want to start a family have very few options beyond adoption. This ruling effectively prevents more families who don’t fit the traditional heterosexual married partner definition of family from having children.
Let’s talk about our emotions:
As someone from a non-traditional family structure who has benefited from medical assistance to build my family - through donor sperm and using a different form of reproductive health care, an IUI, I am scared. I am scared for how many other states this might spread to, to how many other battlegrounds we have to fight to preserve our right to family building.
I am also deeply saddened. My heart breaks for all those families who want so badly to have children, who have spent months and years and entire savings, who have injected medications time and time again all to get the chance to welcome a child into their arms, or grow their family with siblings whose hopes are ruined by this ruling. Iam grieving for the future of these families and their right to create their families without government intervention telling them how many children they can/ cannot have and how.
Finally, I am not surprised. I have been waiting for this moment from the day Roe V. Wade fell and Clarence Thomas effectively intimated that IVF and gay marriage was next.
Ultimately, I have no words. I am in mourning - for the people in Alabama, for those in other states who may rule similarly, and for our nation’s identity.
For more on this subject from professional writers check out:
America’s Fetal Personhood Ruling: It goes way beyond IVF, Jessica Valenti
Alabama Personhood Decision Gives Boost to Fetal Personhood Movement, Bloomberg
Alabama Court Ruled Frozen Embryos are Children. Experts Explain Potential Impacts to IVF, CBS
Alabama Supreme Court Rules that Embryos Can Be Considered “Children” Under State Law, PBSBest
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Julia
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Thank you for this! Super helpful. I shared in my newsletter this month!