This article was published in The Oxford Student as part of my 'Womansplaining' column.
Just last week, the Alabama Supreme Court ruled that frozen embryos produced by IVF should be considered ‘extrauterine children’, a decision which signalled the largest rollback on reproductive rights in America since the 2022 overturning of Roe v Wade. Ruling on two wrongful death cases brought by couples who had frozen embryos destroyed by accident at a fertility clinic, the Chief Justices overturned a lower court verdict that the embryos did not qualify as a person or child.
Even though the State Attorney General’s office has outlined they have ‘no intention’ of pursuing criminal charges against IVF clinics, fears of legal repercussions mean that three Alabama providers have since halted IVF treatments. As 45% of all embryos grown in laboratories die as part of the fertility process, a chilling effect has descended on doctors who can be sued for wrongful death. This has caused concern and angst for couples who have long dreamt of having children of their own.
On top of creating significant ambiguity for the future of fertility treatments, this ruling enshrines principles of ‘fetal personhood’ into state law, which grants embryos and fetuses full legal rights and protections. This has long been a goal of many within the anti-abortion movement. Such ‘personhood’ bills have enjoyed success so far, sometimes with ludicrous results. In Georgia, which has a fetal personhood law, one can claim a fetus as a dependent on their tax return; pregnant individuals can also drive in the high-occupancy lane, which requires two or more passengers to be in the car.
This is insane. But it has not come out of the blue; it is the logical conclusion to a prolonged battle by the political right in America to strip women of their rights. As the Guardian’s feminist columnist Arwa Mahdawi notes, Republicans are not happy with just forcing women to give birth; they aim to control all facets of reproductive healthcare, as demonstrated in the case of Alabama.
This is part of a larger, more sinister, trend. During Trump’s presidency between 2016 and 2020, he nominated three Chief Justices to the Supreme Court, all of whom sided with the majority in striking down the 1973 Roe v Wade decision that previously guaranteed a federal right to abortion. Such a decision sparked an immediate rush by conservative leaders to pass laws banning abortion early on in almost all pregnancies: a staggering twenty-one states now ban abortion or restrict it earlier in pregnancy than the standard set by Roe.
And ever since the ruling in 2022, a national battle over reproductive rights has re-opened. The anti-abortion movement in America is chipping away at everything from access to fertility treatments to birth control: Missouri’s courts have cited Biblical teachings to justify restricting abortion rights, while a Trump-appointed, devout Christian judge in Texas attempted a nationwide ban on Mifepristone, a common abortion pill. Now, unsurprisingly, they have turned reproductive technology and IVF into another cultural battleground.
Ought embryos to be considered humans? The Republican Party is stuck in a catch-22: on the one hand, they rely on this premise to philosophically justify banning or limiting abortion. On the other hand, staying logically cohesive and endangering IVF could worsen the anger that has already cost Republicans dearly since the fall of Roe v Wade, especially among suburban women and swing voters on whom they depend for the upcoming 2024 presidential election. Even though Trump has demanded an ‘immediate solution’ to protect IVF in Alabama, Republican officials have struggled to respond to the ruling with a cohesive message, with their lack of clarity possibly fatal. Perhaps the silver lining amidst this horrific ruling is that it might be a ‘political gift’ for the Democrats. We will have to wait to see if the Republicans can get out of the hole they have dug for themselves.
To be, or not to be? That is the question.