Jinshuo Liu, PhD candidate, Newcastle University

On February 16, 2024, the Alabama Supreme Court rendered a judgment recognising frozen embryos as unborn children, thus extending to them the protections afforded to minors under the state’s laws. This ruling stemmed from a legal dispute involving the Mobile Infirmary Medical Centre, where three couples sued after their embryos were accidentally destroyed while in storage.

The Supreme Court of Alabama stipulates that the Wrongful Death of a Minor Act applies to all unborn children, regardless of whether the embryos are implanted or in storage [1]. The court stated, ‘Unborn children are “children” under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics’, in response to the appellants’ wrongful-death claims.

This judgment granted ‘the sanctity of unborn life’ to in vitro embryos. There are controversies surrounding when life begins, which is of paramount importance since individuals enjoy legal personhood from the beginning of life. Those recognised as existing after the beginning of life possess all human rights, including the right to life.

The question arises whether such ‘minor children’ share the same rights as individuals who have already been born. If embryos are legally recognised as holding rights equivalent to those who have already been born or those who are developing in women’s bodies, conflicts and legal disputes may arise. For example, the disposal of embryos, if they are legal persons enjoying the right to life, becomes a complex issue. In every cycle of IVF before embryo transfer, clinics typically extract more than one egg from the uterus of the female progenitor to increase the chance of a successful operation. However, not all embryos will be used, leaving surplus embryos needing to be addressed. Determining their fate becomes crucial.

Potential risks to progenitors and hospitals

Recognising embryos as legal persons could have consequences for IVF clinics and medical practitioners, potentially leading to failed embryo transfers being viewed as potential manslaughter, causing legal uncertainties and inhibiting access to IVF treatments[2]. For instance, the University of Alabama at Birmingham paused IVF procedures due to fear of legal disputes.

To address these concerns, the Alabama State House and Senate passed a law stipulating civil and criminal immunity for IVF patients and health professionals. However, despite Alabama’s efforts to protect the rights of embryos, patients, and doctors, there are 125 Republican members of Congress in Washington DC co-sponsoring a bill called the Life at Conception Act, declaring that life begins at conception without any exception, meaning IVF is not protected.

Two pairs of interests need to be balanced

Balancing the rights of progenitors’ procreative rights and the rights of unborn children is further complicated by the consideration of patient autonomy and the rights of unborn children.

Regarding the first pair of interests, people might find it equal when balancing procreative rights and the children’s right to life if embryos are regarded as children. Article 8 of the European Convention on Human Rights (ECHR) respects everyone’s private and family life. Article 8(2) stipulates that there shall be no interference by a public authority for the protection of health or morals, or the protection of the rights and freedoms of others. Similarly, the right to procreate is protected by Article 12, stating that ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’. The right to procreate should be protected against any public interference. On one hand, if embryos have the right to life, they must be born in due course. On the other hand, the progenitors have the right to choose when the embryos should be born or even the right to refuse the use of embryos. They are the ones who decide whether to continue their genetic lineage. Therefore, the clash between the right to life of embryos and the right not to procreate highlights a dilemma, and recognising both rights as fundamental precludes prioritising one over the other.

As for the second pair of interests, patient autonomy may be compromised if placed on the opposite side of the scale from the right to life of ‘unborn children’. While patient autonomy is employed to decide whether patients undergo embryo transfer, embryos may be deemed morally and legally entitled to birth based on the right to life. Consequently, patient autonomy in deciding whether to undergo embryo transfer could be compromised, as the right to life takes precedence both morally and legally.

By balancing the two pairs of interests, it is evident that the ruling forcibly pits the rights of the unborn against those of the born. Embryos’ right to life is likely to infringe upon the existing rights of people in the foreseeable future. At least for now, it is quite unexpected that the ruling declaring embryos as humans precedes the invention of an artificial uterus.

[1] Art. I, § 36.06(a), Ala. Const. 2022 (adopted Nov. 6, 2018) (sometimes referred to as “the Sanctity of Unborn Life Amendment”).

[2] Gerard Letterie and Dov Fox, ‘Legal Personhood and Frozen Embryos: Implications for Fertility Patients and Providers in Post-Roe America’ (2023) 10 JL & Biosciences 1.