Photo by Scott Graham on Unsplash
Hey there everyone –
I’ve done a deep dive into the Alabama Supreme Court decision of February 16, 2024, so this post is just a Part I, to get you up to speed on the case itself, and the ways it has been discussed in the mainstream press.
In Part II I’ll talk about who is being left out of the mainstream media’s discussion, and why that’s happening. In Part III I’ll look at the political symbolism of the case’s occurring in Alabama, and how the Right is relying on prejudice against the South to fuel its larger legal and political project—to control who gets to be a family, who gets to reproduce, who counts as a citizen, and who gets to be born.
You may remember that when the Dobbs decision came down I wrote about it as an act of psychological warfare:
The gut punch is the point. This decision is designed to create an embodied impact, even if the body you currently inhabit is not pregnant, nor is going to become pregnant in the near future—or ever. It offers the opportunity in the present to experience, or re-experience, depending on your identities, the ways in which personhood, so often figured in European law as a form of personal property, can itself be owned by the court.
And in so doing, it reflects not only the present moment, in which the bodies of pregnant people—in both the present and the future tense—are imbued with less personhood than men, but also the national histories of enslavement and genocide, both of which depended on situating some bodies as human and others as less-than-human, or as objects to be traded and owned by another.
When I started my research, I was just trying to figure out if the Alabama decision was an extension of the original Dobbs decision, consolidating its logic, and thus another swing at the people who got walloped by Dobbs,but adding in those people not yet pregnant but who wanted to become so.
The short answer to that question: yes. As Heather Cox Richardson notes:
[Dobbs] referred to fetuses as “unborn human being[s]” when it overturned the 1973 Roe v. Wade decision recognizing the constitutional right to abortion. The Alabama decision cited the Dobbs case 15 times, relying on it to establish that “the unborn” are “living persons with rights and interests.”
But before I get ahead of myself, let me tell you about the case itself.
Three families sued the Center for Reproductive Medicine in Mobile, Alabama for wrongful death. They were seeking damages because the Center had stored their embryos and a hospital patient had entered the facility, taken embryos from cryogenic storage, and then dropped them, causing those embryos to be destroyed.
Having spent hours of time and thousands of dollars to undergo the procedures necessary to create the embryos, and having anticipated and hoped that one of those embryos would successfully implant into a uterus, become a fetus, and if all went well, result in the birth of a baby, these couples were rightfully distraught about this accident. It’s important to remember that each of the couples already had successfully become parents through IVF with the Center’s assistance. Their remaining embryos were in storage at the Center.
What’s legally interesting about the case is that instead of suing for loss of property, the couples sued for wrongful death of a child.
Now, when people go to fertility clinics for IVF, they sign a contract, giving the clinic instructions and rights about what to do with their remaining frozen embryos, if they decide not to use them for other procedures. If a person becomes pregnant, has a baby, and decides not to have other children, or if the embryos are found non-viable, or if a certain period of time has passed after which the fertility clinic will no longer store the embryos, for example, the clinic has to know what to do. The usual language in these legal contracts is that the embryos will either be donated for research purposes or “destroyed.”
You can see here that the logic through which the clinic and patient embarked upon a contract was that of destruction of property. The embryos are the property of the person or the couple: if they weren’t, the couple wouldn’t be able to sign the contract determining what happens to the embryos in the first place. If the clinic breaches the contract, destroying the embryos, the couples are right to sue for monetary damages. So far, so good.
What these couples did, however, was an end run around the property logic. Instead, they argued that the embryos were children and as such, the hospital system of which the Center was a part could be held liable for killing the children. In that case, the lawsuit could be brought under wrongful death.
Now, as John Culhane explains beautifully in Slate, wrongful death suits were originally designed to compensate surviving parties—usually women and children—for the death of an adult upon whom they depended for income and survival. The survivors are being compensated for the loss of income the person would have generated in the future, had they not been killed.
It’s harder to sue for wrongful death of a child, because children consume resources rather than generate them. But wrongful death suits have been successfully argued under the logic of loss of companionship, an emotional hardship which is very difficult to calculate, in terms of monetary damages, but has a certain emotional, and hence, legal standing. In this decision, which overturns a prior ruling, the couples have been granted the right to sue the hospital for negligence under the wrongful death statute.
What’s notable is that as soon as the words “embryos are children” flickered across the nation’s chyrons, the political and emotional sirens went off. The IVF case immediately became a signifier for Dobbs: a case that fuels the anti-abortion movement, because it joins a series of cases that have been establishing rights to fetal personhood. If the fetus is a person, then we have the rights of the pregnant person going up against the rights of the fetus person. And now, it seemed, we were joining to the ranks the idea of the rights of an embryo person, walking the timeline of personhood back to the first few cells after conception. This thesis was only amplified by the widespread circulation of a quote from Alabama Supreme Court Justice Jay Mitchell, whose opinion stated:
This Court has long held that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act . . . [it] applies to all unborn children, regardless of their location.
I admit this was my first response, too. I saw the case as only about abortion, a craven use of the law to boost the anti-abortion cause, to pump up the base during an election year, to change the subject away from Trump’s lawsuits for a few seconds, and to once again traumatize and enrage the other side, giving the Right a series of angry and tangible enemies to organize against. (Except now, inconveniently, there was that small detail of the over 80% approval rate for IVF among Republicans. But we’ll get to that in Part III.)
Because that political frame is so old, and so successful, it makes sense that the mainstream media quickly slotted the Alabama case into it and moved on. The thing is, when the press represented the case as part of a pre-existing fight, an important element of the case—the fact that it’s kind of astounding it succeeded—became largely overlooked. Also, to truly appreciate the legal pretzel of this case, you have to understand how IVF works.
Here’s a simplified explainer. If you want to use IVF to get pregnant, you take drugs that stimulate the follicles that the ovaries produce once a month. Each follicle contains fluid and an immature egg. Once an egg matures, it can be released by the follicle, travel down the fallopian tube and, if it is met with sperm, can become fertilized, implant in the uterine wall, and gestate. Some eggs produced by follicles are viable; some aren’t. Some fertilized eggs implant, some don’t. That’s regular old everyday reproduction stuff.
Now, if you’re engaging in IVF, you take the drugs, stimulate more follicle production than the body usually generates, and in stage one, you harvest as many eggs as you can. Then you harvest those eggs. Some people stop there, “freezing their eggs” for later use. Some people immediately introduce sperm to the situation, either previously frozen from a sperm bank, or fresh, and if all goes well, the result is embryos. Those embryos are then frozen. That’s the end of Part I. In Part II, the person who wants to get pregnant has one or more embryos inserted through their cervix and into their uterus, with the hope that the embryo will implant, gestate, become a fetus, and then result in a live birth.
When you walk out the steps of IVF, you can see 1) why it’s very expensive; 2) why it’s so emotionally fraught for the people attempting to become pregnant; 3) how many points there are along the way where something can happen that complicates the situation, or does not result in pregnancy, or a live birth.
So this wrongful death of a child argument, in the context of IVF, is kind of wild. First, you have to argue a wrongful death case on the premise that everything I just described above is something you can predict, anticipate, guarantee, and then sue for, when it doesn’t happen. Just because the couples had successfully become parents using IVF in the past was in no way a guarantee that they could achieve the same result in the future. And yet by suing for wrongful death, the couples are concurrently arguing that each of those embryos would have implanted, gestated, and carried to term. They were children when they were blastocysts; they were children when they were born.
Second, as Culhane at Slate pointed out, the prospective parents suing the clinic are in an impossible legal position. If the embryos are children, then they have rights. If the embryos have rights, then the “parents” don’t have the right to freeze them in the first place. Parents can’t freeze their children. So before the hospital patient “killed” their embryos, the couples violated their rights. The couples are at once asserting that the embryos are their property, to do with what they wish—freeze, implant, gestate, etc.—which is evidenced by the contract they signed, and that the embryos aren’t property (inert); they’re live children being killed/murdered by the hospital’s negligence.
You can see, then, under the logic of this case that:
–the prospective parents can’t leave any embryos behind in the freezer, because they’re children
–the clinic could be guilty of murder if it sends an embryo to a research lab or otherwise kills the remaining embryos, increasing its legal liability
–the clinic should only implant one embryo at a time, to ensure it cannot be sued for wrongful death, vastly increasing the cost of each IVF procedure
And that’s why as soon as the decision came down, some health centers in Alabama immediately halted IVF.
You can see why the mainstream media jumped on this case, slotted it into the anti-abortion victory camp, and then proceeded to investigate the connections between the justices and the white Christian Right. I’ll talk more about that in Part III. In Part II, I’m going to look at a crucial missing piece in this case, one that so far I haven’t seen anyone discuss.
Stay safe out there this week —
xoxo
Rebecca