After the Alabama Supreme Court’s IVF Decision, What’s Next?

The Alabama Supreme Court’s February 16 decision in LePage v. Mobile Infirmary Clinic, Inc. has been grossly misrepresented, arguably for partisan ideological purposes. It has been framed as an all-out attack on artificial reproduction and another nefarious consequence of the reversal of Roe v. Wade. It is neither. It is quite narrow, focused on whether Alabama’s Wrongful Death of a Minor Act, under which the parents whose embryos were lost due to clinic negligence sued, applies to embryos outside the womb. Alabama precedent had already said it applied in utero. I explain the issues here.  

So, I don’t think Alabama’s judiciary is extending legal protections to the unborn across-the-board as much as addressing the basis for an injuries lawsuit. But while Alabama is not extending wholescale legal protections to the unborn, those who seek political gain from the ruling are casting it that way. The partisan split is: Democrats want to glom onto this ruling to push abortion-on-demand while Republicans seem to be declaring their love for in vitro fertilization (IVF) in the hope of not being controversial. Even Alabama’s Republican Governor and Legislature seem to want to go down that path.

My concerns, however, are the long-term dangers.

First, despite the fact that there are probably at least a million embryos in the United States consigned to a frozen sleep, with no clear prospect of ever being allowed to advance to birth, IVF manages to truck with a “pro-life” image. Arguably, most Catholics also viscerally accept that caricature. That’s because they do not understand that the technological aspects of IVF result in multiple fertilizations, embryo destruction, and indeterminate embryo freezing. (In some countries, there is a mandatory “discard by” date if the embryos are not implanted.) It’s also because artificial reproduction suffers from the same vow of omertà (Mafia silence) that surrounds homiletic treatment of contraception. Finally, people just don’t want to say “no” to somebody wanting a baby, even if they avert their eyes from how they get their wish.

That “pro-life” image is a godsend for the abortionists. General American ambivalence about abortion is rooted in a visceral recognition of its moral indefensibility, except for perhaps some narrow range of “exceptions,” in proportion to how advanced is the pregnancy. The abortion-on-demand-anytime-for-any-reason crowd generally do not say that too loudly or openly, even if that was what Roe v. Wade allowed and is what they want to “codify.” Being able to marry “I want to have a baby” masquerading as a pro-life motif with “reproductive choice” gives abortionists a chance at expanding their support.   The supposed “pro-life” image of IVF is a godsend for the abortionists.Tweet This

If one examines the state constitutional amendments pro-abortionists push in the wake of Roe, they seem to fall into two categories. Only in very conservative states (e.g., Nebraska, South Dakota) do they speak almost exclusively of abortion (even if they lay groundwork for future potential judicial expansion). Elsewhere, (for example, in Ohio) they marry abortion with “reproductive choice.” During last year’s Ohio campaign, proponents tried to wed abortion to contraception, scaring Ohioans with obiter dicta from Justice Thomas’ concurrence in Dobbs to insinuate that legal contraception was threatened. IVF supporters are, to them, an added blessing, expanding the pro-abortion tent.

Second, while pro-abortionists will try to profit from support for “infertile couples” legally transmuted into “reproductive choice,” let’s be aware of the consequences of that sleight of hand. If “reproductive choice” is utterly unquestionable (as pro-abortionists hope to make any abortion at any stage of gestation), it also means that surrogacy must be a legally available “reproductive choice.” Frankly, I would not be surprised if the caricature of the Alabama ruling is used to grease the slicks to push pending commercial surrogacy over the line in the Michigan Legislature. 

Ensconcing “reproductive choice,” however, will immunize even surrogacy, changing it from a policymaking to a Constitutional status, thereby minimizing its potential regulation. As Jennifer Lahl observed, America is the “wild West” of the multi-million dollar per year industry she calls “Big Fertility.” Artificial reproduction—IVF, surrogacy, egg and sperm donation, artificial insemination—all are largely unregulated, something Big Fertility has a highly lucrative stake in maintaining. That’s why the Alabama fertility clinic fought the parents’ claims under the Wrongful Death Act: personal injury, as opposed to property damage, represents a substantially greater financial risk they sought to avoid.

This regulatory vacuum has currently mostly been filled not by laws embodying public policy but individually established contractual arrangements, e.g., surrogacy contracts.  Critics of this approach have always argued that these ad hoc contracts are exploitative—there is ample evidence of the numbers of surrogate babies abandoned by contractors because they were “defective.” Contracts—with commissioning parents or with Big Fertility clinics—can always be skewed in ways that favor the monied.  

Such lack of regulation is unimaginable elsewhere. The Left would be on the warpath if Big Banking enjoyed the freedoms of Big Fertility. But when it comes to the talisman of “reproductive choice,” all regulations are to be set aside—except, perhaps, if that choice is not the “right” one; that is, one advocated by crisis pregnancy centers.  Then, it is “disinformation.”

Because these state constitutional amendments are also framed in terms of an “individual’s” right to “reproductive choice” and “abortion,” they do not just represent gender ideology that “men can become pregnant.” By detaching “choice” from sex, these amendments also guarantee access to reproductive technologies for those otherwise naturally infertile (e.g., same-sex partners) which means—claims to the contrary in Obergefell that marriage and procreation are divisible—state endorsement (and likely subsidy) of creating and rearing children in these arrangements. That will be the final nail in the coffin of treating natural parenthood (that is, having babies the way people have since Adam and Eve) as legally privileged and protected.  

Those are the stakes in light of Catholic principles.