By Lisa Senecal
This morning, Alabama Gov. Kay Ivey signed into law limited protections for in vitro facilities and providers in reaction to the state’s Supreme Court ruling in late February, which threw in vitro services into chaos.
Here’s the problem: the new law doesn’t address the most dangerous and extreme portion of the ruling, which established embryos as people with the same rights and protections. Alabama’s legislature’s and governor’s half-measure and failure to address that little detail appears to have provided legal liability protection for patients and providers who contribute to the “deaths” of a new class of “people” established by their state’s highest court. That seems problematic.
The Alabama Supreme Court’s ruling stands pending additional legislative action, and IVF in Alabama remains uncertain as some facilities plan to begin services again while others remain cautious and closed. We would be naive to believe there won’t be a legal challenge to the state’s half-measure that will throw women, their families, doctors, and IVF facilities into further chaos. Alabama’s Supreme Court was clear in its extremist personhood decision, and there are other states and well-funded groups fighting to see that ruling stand in Alabama and spread to other states. Am I the only one who remembers “conservatives” screaming about judges “legislating from the bench?”
After all the financial, physical, and emotional sacrifice and investment, these women and families were left asking what comes next. We should all continue asking that question because the societal implications of the Alabama decision go far beyond those seeking to start or grow their families via IVF.
One of the awakenings Americans should have had at some point between the election of Donald Trump and the Supreme Court’s overturning of Roe is that the unimaginable is entirely possible. The number of people and warnings that were deemed over-the-top or fear-mongering in the past eight years and now appear to have been somewhere between understated and prescient require us to at least attempt to conceive of the inconceivable. *Pun slightly intended.
If, as the AL Supreme Court has ruled, embryos enjoy all the rights and protections of other citizens, then is the failure to implant all embryos in a hospitable uterus not a denial of their rights to life, liberty, and the pursuit of happiness? Can anyone credibly argue that a “person” in a freezer has liberty? Can they pursue happiness? And is putting a child in a freezer not a rather obvious form of child abuse? I mean, if you can’t strip children naked and make them stay outside in sub-freezing temperatures, can you really freeze embryos? And if embryos can’t be frozen and can’t be destroyed, then I ask again…
What comes next?
There seem to be two options…or are there countless possibilities?
The most obvious is that women would be required to have all embryos implanted at once. Yes, that reduces the chance of carrying a healthy pregnancy to term and for any fetus to survive. And sure, it increases the risks to the life of the mother, but it can’t be credibly argued that the embryos have a better chance at liberty and happiness in a freezer than in a crowded uterus. If a woman refused to have all of the embryos implanted or a doctor refused to do so, are they not running afoul of the state’s homicide laws?
Option two would be that the State of Alabama revoke parental rights and hand control of the embryos to the state. The state would then be responsible for preserving the “life” of each embryo, but it would also need to provide for it. Is the State of Alabama now in the business of locating a hospitable uterus and for the cost of invitro fertilization? Who has legal rights to the fetus(es) at that point? The person carrying the pregnancy? The State? Can the parents fight to get their parental rights back? Does the surrogate receive payment and free healthcare and give birth to a child directly into State custody?
The bottomless pit of legal and emotional complications boggles the mind. What if the mother does not want to have all embryos implanted, but the father does? Is he given sole custody because a mother who wants to murder her children would, of course, lose her parental rights? If she has other children, will they be removed from the household? Could the parents still live together, or would that be considered a danger to the children living there? Would the father alone have the authority for those embryos to be implanted in any willing uterus? Say, a girlfriend? How about an adult daughter? Could a daughter give birth to her own sister without her mother’s permission? If the parents are a young couple, perhaps the mother-in-law could be the surrogate of her own grandchild, to which her daughter-in-law would have no legal rights. And in that case, is the grandchild also the biological mother’s daughter and sister-in-law? Certainly, the Alabama Supreme Court carefully considered all of these questions before ruling.
These convoluted scenarios, however unlikely and preposterous, are the world we inhabit - as is the growing control and repression women in America endure. It cannot be dismissed because Alabama passed a weak tea law that might or might not provide legal protections in some situations. It’s our inability or unwillingness to imagine the lengths to which a wannabe strongman would go or how a rogue state or the U.S. Supreme Court would rule that has enabled the impossible to imagine to become reality.
We are far beyond “plan for the worst and hope for the best.” When it comes to Donald Trump, MAGA, and the American right, plan for the worst, expect the worst to be worse than you envisioned, and fight every day to stop the further stripping of our rights and to get back those we’ve already lost. It’s within our power but won’t happen without us flexing pro-democracy power daily and at the ballot box every chance we get.
