IVF and the Alabama Supreme Court decision to protect embryos

On 16 February 2024, the Alabama Supreme Court published its (majority) decision indicating that frozen human embryos, stored for IVF, can be considered as prenatal children (see BioNews 1228). The judgement was based, in part, on the Alabama Constitution, which was amended in 2022, whereby Article 1 (§ 36.06(b)) 'acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate'.

The ruling, which sent shockwaves around the USA and beyond (see BioNews 1229), resulted from the case of a patient who had managed to access the room where frozen embryos were being stored in a fertility clinic. This person then accidentally dropped some on the floor, thereby killing them. Following this transgression, the clinic was taken to court for negligence by the persons who had generated the embryos (see BioNews 1208).

The Supreme Court's decision was based on the 1872 Alabama's Wrongful Death of a Minor Act, which allows parents of a deceased child to recover punitive damages for their child's death. This Act had already been interpreted by the Supreme Court in 2011 to include an unborn child, regardless of that child's viability or stage of development. Thus, the central question which was considered by the 2024 judgement was whether the Act also covered unborn children located outside a human uterus at the time they were killed. The majority decision of the Supreme Court indicated that the Act did cover all unborn children, regardless of their location, in light of the newly amended Alabama Constitution (see BioNews 1229).

However, Justice Greg Cook of the Supreme Court dissented from the majority decision for a number of reasons, including that he feared it would prohibit the creation of embryos via IVF.

To this, Chief Justice Tom Parker responded that other 'Westernised countries' had developed practices to minimise the destruction of embryos during IVF, and that the decision to categorise embryos as children would not affect the procedure.

The question arises, therefore, whether Chief Justice Parker is right and whether it may be possible for individuals to continue to use IVF while acknowledging that human embryos have a special moral status. This is relevant since most countries around the word do recognise that human embryos cannot just be considered as 'piles of animal cells' and do have some kind of moral status. This is why specific legislations relating to the use of these embryos exist, which usually include detailed constraints. In the UK, for example, the Human Fertilisation and Embryology Act 1990 was based on the 1984 Warnock Report, which recognised that human embryos have a 'special' moral status. Thus, there may be a responsibility to develop IVF in this context and to not seek to intentionally destroy human embryos during the procedure. This could be achieved, for instance, by reducing, or even eliminating, the need to create surplus embryos during IVF, which are often eventually destroyed.   

In this regard, it may be useful to examine what is happening in European countries where the moral status of embryos, including frozen embryos, has generated ethical, moral, and legal challenges. Indeed, in countries, such as Germany, Switzerland, and Austria, specific laws have been enacted to restrict embryo cryopreservation. For example, the German 1990 Embryo Protection Act explicitly forbids (in most cases) the creation of surplus embryos during an IVF treatment cycle. It also states that it is only possible to fertilise the number of eggs from a woman (to a maximum of three eggs) that can immediately be transferred back into her in one treatment cycle.

However, the German Act also defines an embryo as a fertilised egg after fusion of the two pronuclei (which are the small entities containing the chromosomes from the egg and those from the sperm cell), which takes place about 10-24 hrs after the sperm cell first penetrates the egg. In fact, it is only when the fertilised egg begins to develop, with the formation and then expulsion of a polar body (containing an extra set of chromosomes from the egg), which take place about two to eight hours after sperm penetration, that the fertilised egg has the normal two sets of 23 chromosomes, with one set coming from the man and the other set from the woman. But the pronuclei remain separated for a few more hours. This pronuclear stage is also reversible to some extent, suggesting that fertilisation may not have been completed.

As a result, the cryopreservation of fertilised eggs at the pronuclear stage for subsequent use is permitted under German law since they are not considered to be embryos. The rationale behind this legislation was to avoid the ethical dilemmas of unwanted surplus embryos and their eventual destruction since these have, according to German legislation, the moral status of individual persons.

Another way to avoid embryos being stored and subsequently being intentionally destroyed, is to only store unfertilised egg cells, which are not generally considered to have the same moral status as embryos. Egg vitrification is a kind of 'flash freezing' procedure in which eggs are quickly immersed into liquid nitrogen, thus cooling them to -196ºC so that they become 'glass-like' or 'vitrified'. A recent study published in the Journal of Assisted Reproductive Genetics confirmed previous research showing that eggs frozen in this way had a survival rate of up to 91 percent, which brings them close to the survival rate of frozen embryos.

This all means that it is possible for individuals to continue to use IVF while recognising that human embryos have a special moral status. If the will is present, it may also be possible to amend the legislation in countries, such as in the UK, so that IVF procedures respect this status of the embryo in an appropriate manner.

Note: The views expressed in this article are those of the author and do not necessarily reflect the positions of the professional organisations with which he is affiliated.