Earlier this month, Alabama’s Supreme Court ruled on two lawsuits involving three families. The lawsuits allege that the families were receiving in vitro fertilization (IVF) treatments at a hospital in Mobile when their frozen embryos were dropped on the floor and destroyed. The parents sued for damages, but a trial court dismissed their lawsuits on the grounds that embryos are not people.
These parents then appealed their decision to the state’s Supreme Court, which reversed the decision and ruled that the destruction of an embryo falls under Alabama’s Wrongful Death of a Minor law.
Far be it from me to question a state Supreme Court, but this seems like the kind of decision that would fall apart under the slightest amount of scrutiny, or perhaps a third grader’s critical thinking skills.
I have a few questions.
It’s been reported that between ten percent and 25 percent of pregnancies end in miscarriage; sometimes, the mother never even realizes she had been pregnant. Does that mean that every mother who miscarries should be charged with Wrongful Death of a Minor? If so, how will we determine who these mothers are? Would we rely on these mothers to report themselves for committing these crimes, or would we institute a regulatory body that checks in occasionally to make sure that pregnant women haven’t suffered a tragedy which they should be punished for under state law?
If a fertility clinic has a freezer full of embryos and the power goes out, are they charged with one count of Wrongful Death of a Minor or thousands? Also, is the facility legally liable for failing to have a backup generator, or is the power company liable for failing to provide power?
According to a scientific publication from last year, a sample of expectant mothers who tested positive for COVID-19 had a miscarriage rate of 2.5 percent. If a woman suffers a miscarriage after contracting COVID, is she liable for the wrongful death, or can she sue the person who gave her COVID? In order to prevent this terrible loss of life, should we institute a mandatory mask mandate, at least in Alabama?
These are just a few questions I came up with off the top of my head. Unfortunately, the Alabama Supreme Court didn’t also take the burdensome five minutes to extrapolate the consequences of their decision.
One of those consequences is that IVF facilities across Alabama are suspending their operations. After all, if something goes wrong, they could be held civilly liable; you could even argue that if an otherwise normal IVF treatment fails to result in a viable pregnancy, which is something that happens frequently, the facility could be liable for a wrongful death charge. Why take the risk?
A single round of IVF treatment costs anywhere from $15,000 to more than $30,000. Imagine having scrimped and saved for these treatments, desperate to have a child to shower with love, only to learn that your treatments are being suspended because your state Supreme Court decided to make a political statement.
And make no mistake, this is a political statement, yet another volley in the culture war nonsense that has followed the repeal of Roe v. Wade. However, it’s a political statement that’s causing a lot of problems for a lot of politicians.
On Feb. 21, Republican Presidential hopeful Nikki Haley told NBC that she supported the Supreme Court decision and agreed that embryos are “babies.” A couple of hours later, she clarified that she never said she agreed with the ruling, but she did still believe an embryo is a baby.
Those statements may seem contradictory; this is because they are. But Haley is trying to navigate an impossible tightrope: she must signal to her base that she is against anything that even resembles abortion while also attempting to appease the massive number of people who believe the overturn of Roe v. Wade was a runaway disaster for women’s rights and bodily autonomy.
Ultimately, this entire situation boils down to one central question: is an embryo equivalent to a human life?
I will share a thought experiment I read a couple years ago.
Imagine that you’re in a fertility clinic. Suddenly, a fire breaks out. In one room, there is a freezer containing 10,000 human embryos. In another room, there is a perfectly healthy six year old child. The fire is burning fast, and you can only save one. Do you choose to save the 10,000 embryos or the six year old?
I know my answer. I just hope I never find myself in that situation, especially in Alabama.
