Frozen Embryos: Legally Children? The End of IVF, Says Ethicist

 

This transcript has been edited for clarity.

I think we’re all aware that Alabama has put itself and the rest of the country into a moral bind when it comes to abortion and the status of human embryos. Back on February 16, 2024, the Alabama Supreme Court rendered a decision in a case called LePage v. Center for Reproductive Medicine, in which the court said that cryopreserved embryos in frozen nitrogen were legally equivalent to children.

They basically said they’re granted the same rights, meaning you certainly can’t destroy them. You certainly could not be in a situation where somebody said, “I’m going to not use them,” because once you create them, you seem to have some duty to make sure they end up in an environment where they can become full-fledged adults.

This decision that embryos in frozen nitrogen — but literally embryos anywhere — are the equivalent of full-bore children put Alabama in a terrible situation if you were a person or a couple seeking in vitro fertilization (IVF).

IVF requires the creation of many eggs. Women have to undergo drug treatment so that they superovulate. It’s too expensive to just go one egg at a time, egg procurement costs too much, and a cycle of IVF could cost as much as $15,000. There are some people who don’t make many eggs, so you want to get as many as you can.

When you get them, you freeze them, as happened in this Alabama case. By the way, what triggered the court case was that somebody in the lab dropped the tray with embryos in it, and they were basically accused not just of a mistake but of murder.

It’s pretty serious when you see this decision and you realize that if you make a multitude of embryos and then you had a child after two tries, but you have six more, you can’t destroy them. What are you going to do with them? Will they be under the governance of the utility company? What’s going to happen?

Many women in Alabama were outraged by the court’s opinion because they want to do IVF. In fact, politically, proponents of thinking that life begins at conception — or fetal personhood as it’s called, and the view that human embryos are children from the minute of conception — were stuck. It’s hard to argue that IVF is not pro-life. It’s hard to argue that people who desperately want to have children should find it difficult to use the technique.

The state has tried to pass a law that exempts IVF clinics from liability if they’re trying to use human embryos to make babies. I do not think this will stand. The court decision is fundamentally wrong, in part because human embryos are not children. They are potential children. They are possible children, but outside of implantation in the environment of a woman’s uterus, they’ll never become anything.

In fact, the court decision is a version of what used to be called preformationism, which sees a tiny baby inside a human embryo. That’s not true. We know today that you’ve got sets of genes that need messages from the mom in order to begin the process of division and development. It isn’t just expanding a tiny, miniature baby into a full-bore baby, as the court in Alabama seems to think.

 

Biologically, the case is wrong, and it’s also based upon a view of human embryos that’s much more grounded in religion, which has no place in these decisions, than it does science. I think you’re going to find that other states may be influenced to try to mimic the Alabama court decision, but if they do so, it’s going to mean ultimately the end — regardless of what Alabama legislature tried to do — of IVF.

That has a political consequence that I don’t think can be sustained by proponents of fetal personhood or embryo personhood. There is just too much momentum to support the use of IVF to try to create life to make that a politically viable situation.

Alabama may have its court ruling, but I think it’s going to have to pass legislation that overrules the view that embryos are children, not just trying to exempt IVF from the consequences of that view, if we’re going to see IVF possible in that state or anywhere else in the United States.
 

Dr. Caplan, director, division of medical ethics, New York University Langone Medical Center, New York, has served as a director, officer, partner, employee, adviser, consultant, or trustee for Johnson & Johnson’s Panel for Compassionate Drug Use (unpaid position). He is a contributing author and adviser for Medscape.

A version of this article appeared on Medscape.com.

 

This transcript has been edited for clarity.

I think we’re all aware that Alabama has put itself and the rest of the country into a moral bind when it comes to abortion and the status of human embryos. Back on February 16, 2024, the Alabama Supreme Court rendered a decision in a case called LePage v. Center for Reproductive Medicine, in which the court said that cryopreserved embryos in frozen nitrogen were legally equivalent to children.

They basically said they’re granted the same rights, meaning you certainly can’t destroy them. You certainly could not be in a situation where somebody said, “I’m going to not use them,” because once you create them, you seem to have some duty to make sure they end up in an environment where they can become full-fledged adults.

This decision that embryos in frozen nitrogen — but literally embryos anywhere — are the equivalent of full-bore children put Alabama in a terrible situation if you were a person or a couple seeking in vitro fertilization (IVF).

IVF requires the creation of many eggs. Women have to undergo drug treatment so that they superovulate. It’s too expensive to just go one egg at a time, egg procurement costs too much, and a cycle of IVF could cost as much as $15,000. There are some people who don’t make many eggs, so you want to get as many as you can.

When you get them, you freeze them, as happened in this Alabama case. By the way, what triggered the court case was that somebody in the lab dropped the tray with embryos in it, and they were basically accused not just of a mistake but of murder.

It’s pretty serious when you see this decision and you realize that if you make a multitude of embryos and then you had a child after two tries, but you have six more, you can’t destroy them. What are you going to do with them? Will they be under the governance of the utility company? What’s going to happen?

Many women in Alabama were outraged by the court’s opinion because they want to do IVF. In fact, politically, proponents of thinking that life begins at conception — or fetal personhood as it’s called, and the view that human embryos are children from the minute of conception — were stuck. It’s hard to argue that IVF is not pro-life. It’s hard to argue that people who desperately want to have children should find it difficult to use the technique.

The state has tried to pass a law that exempts IVF clinics from liability if they’re trying to use human embryos to make babies. I do not think this will stand. The court decision is fundamentally wrong, in part because human embryos are not children. They are potential children. They are possible children, but outside of implantation in the environment of a woman’s uterus, they’ll never become anything.

In fact, the court decision is a version of what used to be called preformationism, which sees a tiny baby inside a human embryo. That’s not true. We know today that you’ve got sets of genes that need messages from the mom in order to begin the process of division and development. It isn’t just expanding a tiny, miniature baby into a full-bore baby, as the court in Alabama seems to think.

 

Biologically, the case is wrong, and it’s also based upon a view of human embryos that’s much more grounded in religion, which has no place in these decisions, than it does science. I think you’re going to find that other states may be influenced to try to mimic the Alabama court decision, but if they do so, it’s going to mean ultimately the end — regardless of what Alabama legislature tried to do — of IVF.

That has a political consequence that I don’t think can be sustained by proponents of fetal personhood or embryo personhood. There is just too much momentum to support the use of IVF to try to create life to make that a politically viable situation.

Alabama may have its court ruling, but I think it’s going to have to pass legislation that overrules the view that embryos are children, not just trying to exempt IVF from the consequences of that view, if we’re going to see IVF possible in that state or anywhere else in the United States.
 

Dr. Caplan, director, division of medical ethics, New York University Langone Medical Center, New York, has served as a director, officer, partner, employee, adviser, consultant, or trustee for Johnson & Johnson’s Panel for Compassionate Drug Use (unpaid position). He is a contributing author and adviser for Medscape.

A version of this article appeared on Medscape.com.

 

This transcript has been edited for clarity.

I think we’re all aware that Alabama has put itself and the rest of the country into a moral bind when it comes to abortion and the status of human embryos. Back on February 16, 2024, the Alabama Supreme Court rendered a decision in a case called LePage v. Center for Reproductive Medicine, in which the court said that cryopreserved embryos in frozen nitrogen were legally equivalent to children.

They basically said they’re granted the same rights, meaning you certainly can’t destroy them. You certainly could not be in a situation where somebody said, “I’m going to not use them,” because once you create them, you seem to have some duty to make sure they end up in an environment where they can become full-fledged adults.

This decision that embryos in frozen nitrogen — but literally embryos anywhere — are the equivalent of full-bore children put Alabama in a terrible situation if you were a person or a couple seeking in vitro fertilization (IVF).

IVF requires the creation of many eggs. Women have to undergo drug treatment so that they superovulate. It’s too expensive to just go one egg at a time, egg procurement costs too much, and a cycle of IVF could cost as much as $15,000. There are some people who don’t make many eggs, so you want to get as many as you can.

When you get them, you freeze them, as happened in this Alabama case. By the way, what triggered the court case was that somebody in the lab dropped the tray with embryos in it, and they were basically accused not just of a mistake but of murder.

It’s pretty serious when you see this decision and you realize that if you make a multitude of embryos and then you had a child after two tries, but you have six more, you can’t destroy them. What are you going to do with them? Will they be under the governance of the utility company? What’s going to happen?

Many women in Alabama were outraged by the court’s opinion because they want to do IVF. In fact, politically, proponents of thinking that life begins at conception — or fetal personhood as it’s called, and the view that human embryos are children from the minute of conception — were stuck. It’s hard to argue that IVF is not pro-life. It’s hard to argue that people who desperately want to have children should find it difficult to use the technique.

The state has tried to pass a law that exempts IVF clinics from liability if they’re trying to use human embryos to make babies. I do not think this will stand. The court decision is fundamentally wrong, in part because human embryos are not children. They are potential children. They are possible children, but outside of implantation in the environment of a woman’s uterus, they’ll never become anything.

In fact, the court decision is a version of what used to be called preformationism, which sees a tiny baby inside a human embryo. That’s not true. We know today that you’ve got sets of genes that need messages from the mom in order to begin the process of division and development. It isn’t just expanding a tiny, miniature baby into a full-bore baby, as the court in Alabama seems to think.

 

Biologically, the case is wrong, and it’s also based upon a view of human embryos that’s much more grounded in religion, which has no place in these decisions, than it does science. I think you’re going to find that other states may be influenced to try to mimic the Alabama court decision, but if they do so, it’s going to mean ultimately the end — regardless of what Alabama legislature tried to do — of IVF.

That has a political consequence that I don’t think can be sustained by proponents of fetal personhood or embryo personhood. There is just too much momentum to support the use of IVF to try to create life to make that a politically viable situation.

Alabama may have its court ruling, but I think it’s going to have to pass legislation that overrules the view that embryos are children, not just trying to exempt IVF from the consequences of that view, if we’re going to see IVF possible in that state or anywhere else in the United States.
 

Dr. Caplan, director, division of medical ethics, New York University Langone Medical Center, New York, has served as a director, officer, partner, employee, adviser, consultant, or trustee for Johnson & Johnson’s Panel for Compassionate Drug Use (unpaid position). He is a contributing author and adviser for Medscape.

A version of this article appeared on Medscape.com.