Would You Expect a Firefighter to Run, The Alabama Supreme Court’s odd judgment last week, ruling that frozen human embryos are also individuals, is the reductio ad absurdum of the antiabortion movement’s fanatical worship of the egg-sperm union.
Column: Would You Expect a Firefighter to Run Into a Burning Building to Save a Frozen Embryo?
The court decided that Alabama’s Wrongful Death of a Minor Act, enacted in 1872, long before artificial reproductive technologies, much alone frozen embryos, existed, applies to “all unborn children, regardless of their location.”
The verdict is, in a word, absurd. And I am not the only one who thinks so. In a partial dissent, one of the Alabama judges wrote: “To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain.”
What exactly constitutes a frozen embryo? It’s a little glob of undifferentiated cells. Some fertility institutions freeze them one day after fertilization, while others wait five or six days for them to develop into blastocysts, which can range in size from 200 to 300 cells. By any conventional definition, these blobs are not “children,” although the Alabama Supreme Court justices repeatedly called them such in their judgments and concurrences.
The justices also highlighted Alabama’s Sanctity of Unborn Life Act, a constitutional amendment overwhelmingly approved by the state’s citizens in 2018. Voters correctly predicted that the US Supreme Court will shortly overturn Roe v.
Wade, allowing states to prohibit abortion. When the Supreme Court decided the Dobbs case in 2022, Alabama immediately criminalized abortion, with no exceptions for rape or incest. There are currently no abortion clinics operating in the state.
The case at hand concerns three couples who filed a civil complaint against the Center for Reproductive Medicine, a fertility clinic in Mobile, Alabama, after their embryos were mistakenly destroyed in December 2020 by one of its patients. How that happened is almost as unbelievable as the court’s ruling.
According to court documents, a patient “managed to wander into the Centre’s fertility clinic through an unsecured doorway.” The patient then went into the cryogenic nursery and removed numerous embryos. The subzero temperatures at which the embryos were housed freeze-burned the patient’s hand, causing the embryos to slip to the floor and be killed.”
At this point, you may be wondering, as I was, why this errant patient has not been arrested and charged with involuntary murder. I mean, if a frozen embryo is a constitutionally protected minor kid, and all fetal life is sacrosanct, why on earth would Alabama allow this inadvertent killer to remain at large?
Justice Jay Mitchell noted the matter in his majority decision but did not provide an opinion on it. He simply acknowledged that during oral arguments, the fertility center defendants argued that “individuals cannot be convicted of criminal homicide for causing the death of extrauterine embryos,” but because the center had not raised such issues in the lower court, “we will not attempt to resolve them here.”
Another ludicrous paradox in this case: all three families — the Fondes, the LePages, and the Aysennes — signed contracts with the IVF center that specified how their frozen embryos should be treated. “Their embryonic children,” he said, “were in many respects, treated as non-human property.”
The Fondes, he said, agreed to allow the center to “automatically destroy” embryos that had been frozen for more than five years. The LePages chose to donate unused embryos for medical research. The Aysennes consented to let any “‘abnormal embryos’ be experimented on for research purposes and then ‘discarded.’”
Could someone help clarify how frozen embryos are legally human but can be experimented on or discarded when no longer needed? None of this makes sense.
Many people, understandably, are concerned that in vitro fertilization, in which egg and sperm meet in a petri dish before being implanted in a human uterus, would become unworkable in states like Alabama. Fertility centers will confront too much legal risk and uncertainty. The American Society for Reproductive Medicine called the verdict “profoundly misguided and dangerous.”
Alabama Supreme Court Chief Justice Tom Parker’s theocratic tendencies were completely and shockingly on display in this case. In a second special concurrence, Parker seemed like he was writing a sermon for “The 700 Club” rather than judging on a legal issue.
“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,” Parker wrote in his letter. “[E]ven before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”
To which one can only respond: Are you friggin kidding me? Where, in the mind of such a judge, is the line that divides church and state? Where is the respect for other religious beliefs, or none at all?
Remember that Alabama is paving the way for theocracy. Other states and courts are expected to follow suit.”You only need one state to be the first out of the gate, and then the next one will feel less radical,” Dana Sussman, deputy executive director of the legal advocacy group Pregnancy Justice, told the Washington Post. “This is a cause of great concern for anyone that cares about people’s reproductive rights and abortion care.”
