Ruling that frozen embryos are children sparks fight over women’s reproductive rights

A US court ruling that frozen embryos can be considered as human beings under state law has opened a new battleground in the fight over women’s reproductive rights.

In an unprecedented decision that US President Joe Biden described as “outrageous and unacceptable”, the Alabama Supreme Court has ruled that embryos in test tubes should be viewed as children, and that an 1872 state law allowing parents to sue over the death of a minor child could apply in cases of IVF.

A medical staff member collects an egg on a laboratory dish for an in-vitro fertilisation procedure.Credit: AP

A number of IVF providers have now suspended services while they consider the legal ramifications of the decision, which critics fear could have major implications for fertility treatment across the US, such as rising costs and facility closures.

And with an election looming in November, the issue has become political, with Biden, vice-president Kamala Harris and Donald Trump’s main Republican rival, Nikki Haley, all weighing into the debate ahead of primary races in South Carolina and Michigan in the next few days.

The ruling stemmed from “wrongful death” lawsuits filed by three couples whose embryos were lost at a fertility clinic in 2020. A patient who accessed the facility where the embryos were stored accidentally dropped and destroyed them.

While a lower court in Alabama initially ruled that a wrongful death lawsuit could not proceed because the embryos did not qualify as a person or a child, the Alabama Supreme Court sided with the parents, ruling that “unborn children are children… without exception, based on developmental stage, physical location, or any other ancillary characteristics”.

Abortion rights demonstrators in New York after a deeply divided US Supreme Court overturned the 1973 Roe v Wade decision in 2022.Credit: Bloomberg

Chief Justice Tom Parker went a step further, invoking legal scripture, writing that “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God”.

“Even before birth,” he added, “all human beings have the image of God, and their lives cannot be destroyed without effacing his glory”.

The ruling comes after the US Supreme Court sent shockwaves throughout the nation in June 2022 by overturning Roe v Wade, which gave women the constitutional right to abortion. The court then gave the states the power to determine what kind of abortion access women should get, resulting in many Republican jurisdictions banning abortions altogether.

Fertility providers and legal experts now fear that the Alabama decision could also affect women’s reproductive rights, potentially making IVF less accessible by driving up the costs of services due to greater liability risks.

The University of Alabama was the first IVF provider to pause treatment on Wednesday as it pondered the implications of the decision, followed by another practice, Alabama Fertility, which posted a note on social media on Thursday saying it felt “powerless”.

“We have made the impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists,” the message said.

Biden – who is campaigning for another term partly on the issue of reproductive freedom – issued a statement hitting out at the Alabama court.

“The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable,” he said. “Make no mistake: this is a direct result of the overturning of Roe v. Wade.”

Harris also weighed in blaming Donald Trump for curtailing women’s rights more broadly by appointing three conservative justices on the US Supreme Court with the intention of overthrowing Roe V Wade.

The issue has also become a feature of this weekend’s South Carolina primary race, where former UN ambassador Nikki Haley is facing an uphill battle to win the Republican presidential nomination against Trump.

Asked in an NBC interview if she believed the Alabama court ruling was the right decision, Haley, who had her son through artificial insemination, said: “Embryos, to me, are babies”.

Later, she sought to clarify her comments, telling CNN that it was up to Alabama to determine the state’s law, but added that it was crucial embryos were protected, that parental rights were respected, and “that we have plenty of opportunities and availability for fertility treatments to go forward”.

The Alabama ruling also raises questions about how leftover embryos can be disposed.

In-vitro fertilisation is a laboratory procedure that uses a sperm to fertilise an egg in a specialised laboratory. The fertilised egg (embryo) is allowed to grow in a protected environment for some days before being transferred into the woman’s uterus. Any remaining embryos can be frozen and stored for future use.