Published March 2, 2024
Republican politicians hoping to spend 2024 ducking abortion had another dodgeball thrown at them with the Alabama Supreme Court’s ruling that embryos created and then frozen in the process of in vitro fertilization should be legally treated as unborn children.
In an election year, with the GOP already feeling the post-Dobbs heat, many Republican officials will seek to inoculate themselves from political attacks by criticizing the Alabama court’s decision. The mercurial Rep. Nancy Mace, R-S.C., has already proposed federal legislation guaranteeing a federal right to IVF.
This inclination is a mistake. The Alabama decision has revived a much-needed public conversation around bioethics and what, if any, ethical constraints we should place around science. And these arguments have ramifications outside the realm of reproductive politics. There are plenty of approaches for Republicans to take without signing on to broad progressive legislation that would make access to IVF an “individual right.” And, most importantly, the budding cross-partisan movement to better support families and children in public policy will falter if questions about the shape and structure of how we understand and best support family life are ruled out of bounds.
The Alabama ruling is a far more modest decision than breathless headlines suggest. Parents in Alabama sued a fertility clinic for the accidental destruction of their frozen embryos, saying that under the state’s law, they should be treated as people, not property. The court agreed, under the premise that “an unborn child is a genetically unique human being whose life begins at fertilization” and thus the state’s “Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.”
That each of us begins our earthly journey as a fertilized egg is not a religious proposition — leading medical textbooks readily agree that “Human development begins at fertilization, when a sperm fuses with an oocyte to form a single cell, the zygote … (which) marks the beginning of each of us as a unique individual.” In their 2008 book “Embryo: A Defense of Human Life,” Princeton’s Robert P. George and the University of South Carolina’s Christopher Tollefsen note human embryos are not “a mere clump of cells awaiting some magical transformation.” The question then becomes what moral weight we put on a microscopic zygote — a human being at its earliest stages of development.
Seen through this lens, the Alabama decision simply carries out this argument to its natural conclusion: Frozen embryos shouldn’t be legally treated as simply property or biological byproducts of a medical intervention. Parents being able to collect damages from a negligent facility due to the mental anguish over the loss of a future child seems like a matter of justice, not budding theocracy.
Beyond any real or hypothetical damage to the blastocyst itself, there are other reasons to refrain from a full-throated embrace of the way IVF has been implemented in the United States. As sisters and co-authors Margaret Marsh and Wanda Ronner explored in “The Pursuit of Parenthood,” their 2019 history of reproductive technologies, IVF and other assisted reproduction procedures have helped subtly change the calculus around parenting and procreation. Without a greater attention to regulating the industry’s excesses, Marsh and Ronner (no social conservatives, they) argue, we will likely be “unable to tame the Wild West of reproductive medicine for another generation at least, and perhaps not ever.” Proposals to keep the “government out of the business of reproduction” would leave more women and couples at risk.
For instance, because the U.S. has no federal limit on how many embryos may be implanted in an IVF patient, we have much higher rates of multifetal and preterm IVF births than other countries, leading to additional costs and health risks. Abuses and lack of consumer protections roil the industry. Private companies now offer polygenic embryo screening for common diseases, with more traits on the way, raising concerns of increased ableism and discrimination. Known imperfections in preimplementation genetic testing can cause parents to discard healthy embryos, or result in lawsuits over “wrongful conception.”
More fundamentally, the growing legislative push to treat IVF as a fundamental individual right has helped weaken the connection between parent and child, and the logic of the family as an institution. While there has been adoption, foster care and surrogate parents since time immemorial, IVF allows for a broader reconceiving of the traditional relationship between father, mother and child. Rather than starting with an existing child, and prioritizing policies that create the conditions most likely to lead to his or her flourishing, a no-holds-barred IVF regime would make parenthood an individual right — something that can be undertaken outside of the context of a loving relationship.
This isn’t speculation; it’s current advocacy. The American Society for Reproductive Medicine published guidelines in 2021 encouraging “fertility programs (to) treat single individuals, unmarried couples, and (diverse sexuality and gender) individuals and couples in the same manner as cisgender heterosexual married couples in determining which services to provide.” The push to redefine infertility as being socially constructed, rather than a biological condition, relies on IVF and commercial surrogacy to empower anyone, regardless of biography or identity, to pursue parenthood. But let’s be clear — this is no longer using IVF as a way of surmounting a hurdle for a couple desperately struggling to conceive. It is using technology to deliberately uncouple the act of having a child with the act of biological parenthood.
For Republicans, and those concerned about child well-being, future legislative efforts to untether family formation from two-parent households should be looked on with extreme skepticism. Even as conservatives like myself join with progressives in pushing an expanded Child Tax Credit, more attention to child care and support for pregnant women and new moms, the institution of the family should still be preeminent.
If public policy stresses the importance of two-parent households on the one hand, while mandating individuals’ access to IVF on the other, it could be fairly accused of a certain self-contradiction. To paraphrase the long-time conservative policy scholar Allan Carlson, if we cannot agree that there is a definition of family that policy should be aspiring to support, then talking about pro-family policy lacks coherence.
No one is suggesting that Republicans base their 2024 campaigns on restricting access to IVF. Many women have based their career or fertility decisions based on an expectation IVF would be available to them (even if studies show many individuals overestimate how successful such treatments end up being.) As Anna Louie Sussman reported for The New Yorker, women with frozen embryos became immediately unable to access them when the Polish government banned access to fertility treatment for unmarried women — a needlessly harsh transition. Conservatives should not hesitate to support couples suffering from the agonizing pain of infertility, nor devoting research funds to uncovering infertility’s root causes.
But neither should Republicans (and pro-family Democrats) be too quick to disavow any reform of the IVF industry, or embrace any proposal to guarantee access to it. Until last year, the Defense Department only covered in vitro fertilization for legally married couples using their own sperm and eggs — that policy should be reinstated. State legislative pushes to mandate fertility coverage for all individuals, regardless of medical or marital history, should be opposed. Conservatives should join feminists in regulating IVF to curb its uniquely American excesses, not legislatively embracing it as a technological way of remaking family structure.
Frankly acknowledging IVF’s shortcomings and ethical concerns, while celebrating the very real joy it has brought hundreds of thousands of American families, is a much more honest way of dealing with the Alabama court’s decision than running away from it. Ensuring infertile couples get the help they need, without signing on for a broad rewriting of the social contract, requires more work than a quick election-year dodge; but it’s the way to be authentically pro-family.
Patrick T. Brown is a fellow at the Ethics and Public Policy Center, where his work with the Life and Family Initiative focuses on developing a robust pro-family economic agenda and supporting families as the cornerstone of a healthy and flourishing society.
