Blanket immunity?

ON MARCH 4, representatives of 13 leading pro-life organizations sent a strongly worded letter to the Republican governor of Alabama, Kay Ivey, urging her to veto legislation that was poised to come across her desk.

“If enacted,” the letter warned, “this sweeping legislation would slam the door on any protections for the most vulnerable Alabamians, prevent families from seeking justice for the death or harm caused to their children, and leave a trail of destructive, immoral implications in its wake.”

The topic: in vitro fertilization. The letter came as Alabama’s Republican-led Legislature rushed to pass a bill that would provide blanket immunity for the state’s IVF clinics, shielding them from civil and ­criminal liability for damaged or destroyed embryos. Lawmakers had introduced the legislation—which Gov. Ivey signed March 6—under political pressure 11 days after a landmark Feb. 16 Alabama Supreme Court ruling declared such embryos are “extrauterine children” under state law.

The ruling prompted at least three Alabama IVF providers to pause services and set off a national flurry of public reaction and political tension. Prominent GOP leaders, including former President Donald Trump, rushed to declare support for IVF. Meanwhile, President Joe Biden said the “outrageous” ruling was a direct consequence of the overturning of Roe v. Wade.

The morally and emotionally fraught issue of IVF has quickly become a fault line in the pro-life movement, which has long argued that life begins at conception. The movement opposes abortion but has been less vocal about IVF practices. While Ivey and other Alabama Republicans quickly endorsed the bill granting immunity in cases of damaged or destroyed IVF embryos, many pro-lifers argued the legislation ignored decades-old ethical problems in the fertility industry.

A container with frozen embryos and sperm stored in liquid nitrogen is removed at a fertility clinic. Lynne Sladky/AP

Democrats in the U.S. Senate led their own effort on Feb. 28 to pass a bill that would have established a federal right of access to IVF and other fertility treatments, only to have a Republican senator block it. Meanwhile, in the House, Republican Rep. Nancy Mace of South Carolina circulated a nonbinding resolution affirming IVF access.

The differing conservative views on IVF reflect an instinct to affirm women seeking pregnancy, said Katy Faust of Them Before Us, a child advocacy group: “There’s total agreement that life begins at conception when you’re talking about abortion, but there’s a strange disagreement when you’re talking about IVF. We love babies, and in the minds of so many people, IVF means babies.”

In IVF, doctors extract a woman’s eggs and fertilize them with sperm in a lab, creating embryos to implant in the womb. The procedure involves creating excess embryos and freezing them, a practice called “embryo banking.” Couples often agonize over what to do with those extra embryos: In the U.S., hundreds of thousands have remained frozen for years and even decades, while others are donated for research, or destroyed.

“The babies you do see who are born through IVF are built upon the bodies of dozens, hundreds of little IVF embryos that didn’t make the grade,” Faust said.

The Alabama Supreme Court ruling stemmed from cases brought by three couples whose frozen embryos were destroyed in 2020 when a hospital patient entered the storage area of a fertility clinic in Mobile, removed embryos from the freezer, then dropped them. The couples sued the clinic over the loss of their embryos under the state’s Wrongful Death of a Minor Act. On Feb. 29, another couple whose embryos died in the same incident filed their own lawsuit.

Still, a February Axios-Ipsos poll on personhood protections for frozen embryos showed Republicans evenly split: 49 percent both for and against.

Stephen Billy, vice president of state affairs for Susan B. Anthony Pro-life America, said there’s no serious effort among pro-life groups to ban IVF. “But there are ways that you can both care for and provide options to those struggling with infertility and at the same time respect human life,” he said.

Pro-life groups have long encouraged embryo adoption programs as a life-affirming solution to the problem of excess frozen embryos. The National Embryo Donation Center exists “because we think that embryos are God’s tiniest image bearers, and we don’t think they should be discarded,” said Mark Mellinger, the center’s marketing and development director.

About one-fifth of the states have laws that broadly define personhood as beginning at fertilization, yet IVF remains only minimally regulated. Pro-life groups hope the Alabama ruling will prompt more states to consider regulations that promote humane treatment of early-stage embryos.

Steven Aden, chief legal officer at Americans United for Life, urged lawmakers to regulate embryo banking, surrogacy, and postmortem insemination—the process of creating a baby using a deceased man’s sperm.

Recognizing fetal personhood, Aden said, leads to the conclusion that “our nation’s children should not be stored in liquid nitrogen for undetermined amounts of time.”

This version of the story that appears in the March 23 issue of WORLD Magazine has been updated to reflect Gov. Kay Ivey’s signing of Alabama’s IVF immunity bill.