Important new developments in assisted reproductive technologies:
Two recent media stories about IVF have made headlines around the world. Both stories raise important issues that need to be addressed, and not just swept under the carpet. The first story concerns an IVF clinic in the UK that somehow managed to ‘lose’ some frozen embryos. One media article says this:
A London fertility clinic has had its licence suspended due to “significant concerns” after a “tragic loss of embryos”. The Human Fertilisation & Embryology Authority (HFEA) said it has paused the Homerton Fertility Centre’s licence as there would be a “potential risk to patients, gametes and embryos” if it did not act.
Staff at the centre are “currently investigating issues relating to the storage of embryos,” the local NHS Foundation Trust said. Its statement continued: “There have been three separate incidents within the unit which have highlighted errors in a small number of freezing processes. This has resulted in the tragic loss of a small number of embryos either not surviving or being undetectable altogether.” Patients affected by the loss of embryos have been informed. https://news.sky.com/story/significant-concerns-about-london-fertility-clinic-after-tragic-loss-of-embryos-13090431
The ethical issues here are of course huge. If losing a human embryo is simply akin to losing a tooth or a fingernail, then folks would not be worried. But a human embryo is a human being, it is living, and it is growing (if allowed to do so). As any standard textbook on embryology informs us, human life begins at fertilisation, when the male sperm and female ovum are united.
So even if in a deep freeze, we still have a new and distinct human being, complete with its own unique DNA. In normal human procreation the newly created embryo will grow and develop in the mother’s womb. In the IVF process some extra steps are included along the way (including reinserting the embryo back into the mother or a surrogate).
Abortion of course prevents this natural path of development from taking place. And that leads to a second quite significant story. The Supreme Court in the American state of Alabama has ruled that these frozen embryos are indeed human persons and thus have the same rights to life as humans who have been born. As one write-up explains:
The Alabama Supreme Court has ruled that frozen embryos created and stored for in vitro fertilization (IVF) are children under a state law allowing parents to sue for wrongful death of their minor children. The ruling revived three families’ lawsuits accusing a Mobile, Alabama fertility clinic, Center for Reproductive Medicine, and the hospital where it is located, Mobile Infirmary, of failing to properly safeguard frozen embryos, resulting in their destruction.
The 8-1 majority of the court found that it was a long-established precedent that “unborn children” are “children” for the purpose of the 1872 wrongful death law at issue in the case. It said that any doubt about that was removed by a 2018 amendment to the state’s constitution, which declared that it was “the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children.” https://www.reuters.com/business/healthcare-pharmaceuticals/alabamas-highest-court-ruled-frozen-embryos-are-people-what-is-next-2024-02-23/
Obviously the pro-aborts were outraged that unborn children should have such rights, but the right to life is the most fundamental right of all, and it should not be denied to any human being simply based on their size and location. One opinion piece said this about the ruling:
The Yellowhammer State’s highest court is ruling that frozen embryos are legally children under state law. In a ruling issued Friday, Alabama’s Supreme Court declared that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.” The relevant case involved the question of whether or not parents could sue after their cryogenically frozen embryos were accidentally destroyed by an employee at a fertility clinic.
“The parties to these cases have raised many difficult questions,” wrote Justice Jay Mitchell in the court’s opinion, “including ones about the ethical status of extrauterine children, the application of the 14th Amendment to the United States Constitution to such children, and the public-policy implications of treating extrauterine children as human beings.” However, the court determined that it did not need to answer each question raised, stating that ultimately “the relevant statutory text is clear: the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.”
Alabama’s Wrongful Death of a Minor Act was enacted in 1872 and, according to the court, regards unborn babies as human beings and children. The justices provided extensive examples of definitions of the term “child” throughout the state’s legal history, including two relatively recent decisions — 2011’s “Mack v. Carmack” and 2012’s “Hamilton v. Scott” — which both affirmed that “Alabama’s wrongful-death statute allows an action to be brought for the wrongful death of any unborn child.” But, the court noted, “Even if the word ‘child’ were ambiguous … the Alabama Constitution would require courts to resolve the ambiguity in favor of protecting unborn life.”
The court ultimately determined that “the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.” They added, “That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.” https://www.lifenews.com/2024/02/22/the-alabama-supreme-court-was-right-unborn-babies-are-human-beings/
Another writer however noted that there still exist glaring anomalies in the law about such matters:
Pro-lifers are right to celebrate the court’s recognition of the humanity of these embryos and its imposition on an industry that until now has been an ethical Wild West. At the same time, the decision fails to answer another question. If an embryo must be considered a child if destroyed by accident, what about when it is created, stored in a freezer, and destroyed intentionally? The three couples involved in the Alabama case wished to hold the clinic responsible for the loss of their embryonic children, but as the Court’s opinion plainly states,
[T]he Fondes elected in their contract [with the Center] to automatically “destroy” any embryos that had remained frozen longer than five years; the LePages chose to donate similar embryos to medical researchers whose projects would “result in the destruction of the embryos”; and the Aysennes agreed to allow any “abnormal embryos” created through IVF to be experimented on for “research” purposes and then “discarded.”
Their ruling creates (or reveals?) a legal contradiction similar to that which exists in states with both abortion “rights” and double homicide laws. If a pregnant woman and her preborn baby are killed, the perpetrator can be charged with two counts of homicide. Yet, if that same woman escaped an assault and drove to an abortion clinic the same day, there would be no charge of homicide, legally speaking.
In the Alabama case, the court established that the moral nature of an embryo gives it the same legal protections as a born human under the state’s “wrongful death” statute. Why, then, should the same embryos not be afforded protection from imprisonment, trafficking, experimentation, and eventual destruction?
Strictly speaking, IVF can be done in a way that does not lead to the creation of “excess” embryos. In a 2018 interview, former president of the Christian Medical and Dental Association Dr. David Stevens argued that the ethical way to perform IVF is either by fertilizing and implanting one embryo at a time or by the couple agreeing to implant every embryo created. However, given the costs of each IVF cycle and the almost 50% failure rate, most couples and clinics choose the more “efficient” process. As a result, the number of “excess” embryos suspended in time and development tops a million.
Some of these embryos may be implanted, but most will not. A small number will be donated to other couples for adoption, an especially redemptive alternative that offers embryos a chance at life. The vast majority are treated as property and not children.
So, while this decision can be rightly seen as an incremental step toward the protection of preborn lives created via IVF, the embryos in this case were already being treated in precisely the way the plaintiffs accused others. Eventually, this legal inconsistency must be rectified. The best outcome is if this decision is a first step in reigning in the IVF process, so that one day “extrauterine” children will no longer be treated as commodities. https://www.lifenews.com/2024/02/28/the-alabama-court-was-right-unborn-babies-are-human-beings-starting-at-conception/
I have written before about the commodification and depersonalisation of children in the various new reproductive technologies. And I have said that the desire for children is normal and healthy, but care must be taken as we make biotechnological advances that may not keep in step with basic ethical concerns. See these two pieces for more on these matters:
https://billmuehlenberg.com/2007/08/30/concerns-about-ivf/
https://billmuehlenberg.com/2009/06/15/more-concerns-about-ivf/
As is so often the case with new technologies, they can be a two-edged sword. They can be a real help to many, but they can also create a whole new set of problems and concerns. Thus we must proceed with caution here.
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