Editor’s Note: This article is the first in a two-part series on the considerations which surround IVF. The second article is a biblical outline of human fertility written by Heritage Foundation senior research associate Emma Waters.

Recently the Alabama Supreme Court ruled that the state Wrongful Death of a Minor Act “allows parents of a deceased child to recover punitive damages for their child's death” even if the preborn child is “located outside of a biological uterus at the time they are killed.”

In this case, the plaintiffs seeking relief were “parents of several embryonic children, each of whom was created through in vitro fertilization,” also known as IVF, and who “had been kept alive in a cryogenic nursery while they awaited implantation.” As part of the IVF process, the “treatments led to the creation of several embryos, some of which were implanted and resulted in the births of healthy babies.”

Following the creation of the embryos, the plaintiffs “contracted to have their remaining embryos” kept in the “cryogenic nursery” at the Mobile Infirmary Medical Center.

In December 2020, a patient of the Medical Center wandered into the fertility clinic “through an unsecured doorway,” then entered the cryogenic nursery “and removed several embryos.” The cold temperatures at which the embryos were kept then “freeze-burned the patient's hand, causing the patient to drop the embryos on the floor, killing them.”

The trial court judge granted the defendant’s motion to dismiss the lawsuit because the court found the “cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person' or 'child,' and it therefore held that their loss could not give rise to a wrongful-death claim.”

Interestingly the Alabama Supreme Court noted that all parties of the cases and all members of the Court “agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.” The parties also concurred that “an unborn child usually qualifies as a ‘human life,’ ‘human being,’ or ‘person,’ as those words are used in ordinary conversation and in the text of Alabama's wrongful-death statutes.”

The issue before the Alabama Supreme Court was whether the trial could move forward. This depended on whether the Wrongful Death of a Minor Act applies to embryonic children located outside of a biological uterus and whether the parents of the embryonic children could pursue a negligence claim against the defendants for failing to properly safeguard the frozen embryos in the cryogenic nursery. The Alabama Supreme Court ruled yes to both questions.

The ensuing controversy

An extended discussion of the actual case is important here because the public outcry characterized the Alabama Supreme Court’s decision as an attack on IVF. This led multiple clinics in the state, such as Alabama Fertility and the University of Alabama Birmingham, to halt their IVF procedures.

No one was shocked when millions of leftist voices cried out in terror following the decision. However, Christian conservatives were rightly surprised when Republican leaders such as Representative Nancy Mace of South Carolina, Representative Matt Gaetz of Florida, and even former President Donald Trump came out in opposition to the ruling.

Most troubling, the Alabama legislature, which has a Republican supermajority in both the House and Senate, responded to the decision by providing blanket legal immunity to those involved with IVF. The immunity applies retroactively and prevents IVF facilities from lawsuits even if the destruction of the preborn child was intentional. Alabama Republican Governor Kay Ivey signed the bill into law last week.

By declaring that life begins at conception and that embryonic children are protected by Alabama law, the Alabama Supreme Court did not criminalize or end infertility treatments, including IVF, in the state of Alabama. Rather, the Alabama Supreme Court shed necessary light on the evil ways in which IVF is used.

The blessings and curses of IVF

Millions of families throughout the United States struggle with infertility. This comes as no shock to Christians who from time immemorial understood that God opens and closes the womb as he wills. Christians can mourn with those who are barren, like Sarah and Rachel (Genesis 11:30; Genesis 29:31). We likewise rejoice with those whom God blesses with children (Genesis 29:31, Psalm 127:3-5).

We can also be grateful when technological advances come along to aid women who struggle with infertility. But IVF, like all technological advances, comes with blessings and curses, and must be practiced ethically. In particular, the current practices surrounding IVF are immoral and unethical. State legislatures must address these issues if IVF is to remain legal.

Standard IVF practices currently create more embryonic children in the IVF process than will ever be implanted in the womb. The embryonic children who are not implanted are then discarded or indefinitely confined to frozen cryogenic prisons. This is the unjustified taking of human life.

The advancement of third-party reproduction is also manifestly immoral. Christians affirm God’s plan for procreation through one man and one woman in marriage: third-party reproduction violates the seventh commandment to not commit adultery by introducing the use of an egg or sperm from a donor who is not the mother or father of the child. Additionally, third-party reproduction is destructive to the family unit because it often includes surrogacy, which occurs when a woman outside of the marital union carries and delivers a child. Surrogacy harms women and children because it separates childbearing from childrearing, thus reducing women to wombs-for-hire and unjustly ripping children away from their mothers at birth.

Just as alarming is the eugenic nature of IVF practices. For example, current IVF procedures include screenings to test for genetic abnormalities such as Down syndrome. If an embryonic child tests positive for Down syndrome, that child is discarded. Current IVF practices also allow parents to selectively determine the sex of their baby by only implanting female embryos or male embryos. As the science of IVF advances, is there any doubt this technology will be used to determine factors like their eye color, their height, and their hair color?

These procedures are nothing more than transhumanism and eugenics by another name. To quote C.S. Lewis in That Hideous Strength, the people who engage in and advocate for such practices pull down deep heaven on their own heads.

Policies conservatives should advance

Conservative policymakers have an opportunity to advance legislation that both provides families with access to fertility treatment and ensures IVF is practiced ethically. To do so, conservatives should propose the following policies related to IVF.

First, require that all embryos created through IVF must be implanted as part of the fertility treatment. Although this policy would still allow IVF clinics to store frozen unfertilized eggs, this move will prevent the excessive and unnecessary creation and destruction of embryonic children through the IVF process. It will also ensure that embryonic children are no longer indefinitely imprisoned in cryogenic nurseries.

Second, prevent the eugenic selection of embryonic children. This will ensure no one can selectively discard embryonic children because of sex, genetic abnormalities, or preferred characteristics. This will also require families pursuing IVF to be fully informed of the risks associated with IVF.

Third, any conservative policy regarding IVF must place a complete ban on third-party reproduction, since third-party reproduction is destructive to the family unit, contrary to God’s plan for procreation between one man and one woman in marriage, and a direct violation of the seventh commandment. States should not hesitate to outlaw third-party reproduction completely.

Christian legislators must stand with the Alabama Supreme Court and affirm a preborn child is a genetically unique human being whose life begins at fertilization, whether in the womb or in a laboratory. They must also ensure that IVF is practiced ethically. By doing so, Christian legislators can ensure access to fertility treatments while prohibiting ongoing eugenic practices.