Apr 9, 2025 06:30 PM
https://www.nytimes.com/interactive/2025...=url-share
EXCERPTS: In February 2024 the Alabama Supreme Court ruled that these lost embryos were “extrauterine children,” allowing the three families to proceed with lawsuits against the fertility clinic under the state’s 1872 Wrongful Death of a Minor Act. Between the creation of these embryos and their destruction and as the cases wound their way for years through Alabama’s courts, their meaning shifted: No longer potentially destined for research or disposal, each embryo had taken on the status, in the court’s interpretation, of a minor child.
The ruling swiftly established what had long eluded abortion opponents: unambiguous personhood for embryos. But this new legal status also instantly jeopardized in vitro fertilization practice across Alabama, sending clinics and patients scrambling amid confusion over what kind of liability clinics bore for the embryos — now legally children — in their care...
[...] Less than three weeks after the court ruling, Alabama’s legislature passed a law protecting I.V.F. providers from civil and criminal liability. Gov. Kay Ivey swiftly signed it, over opposition from anti-abortion groups, which argued it offered no accountability whatsoever for clinical mishaps. The law studiously avoided addressing any of the ethical questions raised by the court ruling and the furor that ensued.
If I.V.F. was to be protected, did that mean embryos didn’t really have full personhood? Or if embryos did have full personhood, what kind of law would protect a business from liability in the event of it destroying an entity legally considered a child? The uncertain moral status of these clusters of cells burst into view, undermining any attempt to put them into a neat legal category.
Since then, confusion about how to answer these questions has generated yet more confusion, as voices from across the political spectrum have weighed in with hot takes and legislation...
[...] The murkiness of embryos’ status has sent courts on strange detours in their legal reasoning. In a 2023 Virginia case a judge was tasked with deciding whether two frozen embryos should be awarded to Honeyhline Heidemann, who wanted to implant them, or kept frozen, per the wishes of her ex-husband, Jason Heidemann. Ms. Heidemann asked that the embryos be considered property, so they could be assigned to her like any other salable item. Mr. Heidemann said each was unique and nonfungible and thus could not be treated as personal property.
The case, as Leah Libresco Sargeant wrote, turned embryos into “Schrödinger’s persons,” resulting in “one parent bizarrely needing the embryos to be considered persons in order to prevent them from being born and the other parent needing to argue the children were property in order to let them be born.” Eventually, Judge Richard Gardiner reasoned that “as there is no prohibition on the sale of human embryos, they may be valued and sold and thus may be considered ‘goods or chattels.’”
The reliance on slavery-era codes immediately raised eyebrows. In March another judge rejected Judge Gardiner’s rationale, calling his reasoning that human embryos could be valued and sold, as enslaved people once were in Virginia, “a strained construction.”
[...] The Texas Legislature has gone to great lengths to protect the interests of embryos. Its abortion ban, one of the strictest in the country, defines an “unborn child” as “an individual living member of the Homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development.” The Texas Penal Code defines an individual as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”
The legislature, however, specifically created a carve-out for I.V.F., exempting death of an “unborn child” from murder or manslaughter charges when they are caused by a lawful medical procedure performed by a licensed provider in the context of assisted reproduction. But when offered the chance to extend this status to I.V.F. embryos in a divorce case, no Texas court has yet seemed willing to do so...
[...] For years, it has largely been anti-abortion groups that intervened in cases involving embryos, using these private lawsuits as means to a public end: to help secure an embryo’s status as a full legal person, as the Harvard legal scholar I. Glenn Cohen pointed out to me. Yet when that goal was taken to its logical extreme, through the pronouncement of the Alabama Supreme Court, some in the little-known world of embryo adoption found themselves wincing at what felt like an own goal.
[...] after the Alabama court’s decision came down, several people in the embryo adoption world told me that personhood for embryos would make their work harder, not easier. Dr. Jeffrey Keenan, a Christian fertility doctor who oversees the nation’s largest embryo adoption program, in Knoxville, Tenn., said the ruling denied “basic biology and reality.” “The majority of embryos, even embryos created through natural intercourse, do not go on to form babies,” he told me. “To say that they are all ‘children’ is incorrect.”
There are also people thinking about how the concepts of embryonic and fetal personhood could be deployed in surprising ways. The legal scholar Michele Goodwin pointed out that under those concepts, the embryos of undocumented pregnant women could qualify for citizenship, although she emphasized that a conservative political agenda wouldn’t extend personhood rights that far.
Ms. Goodwin, the author of “Policing the Womb: Invisible Women and the Criminalization of Motherhood,” also suggested that establishing full rights for embryos and fetuses could make people and businesses liable should a pregnancy go awry, giving the examples of manufacturers or factory farms that pollute their communities, people who spray toxic pesticides or landlords who don’t properly maintain a home in which a pregnant person resides.
[...] The questions raised by these legal scenarios, some unfolding with increasing regularity, should spur us to grapple with the current inconsistencies in our laws and ethics. These questions are likely to become even more salient in the years ahead: Hundreds of thousands of people undergo I.V.F. every year in the United States; hundreds of thousands more get divorced. Procedures go awry. Clinics make mistakes. As a result of these ordinary events, people will continue to contest the meaning and fate of embryos in courts, where, as we have seen, there are few consistent guidelines.
Over the years, philosophers, legal scholars and bioethicists have thought through these quandaries in the pages of academic journals...
[...] Without dialogue and debate, transparency and understanding, we risk a future in which embryo governance — or lack thereof — will be decided by religious critics of I.V.F. ruling from the bench or enthusiastic techno-optimists developing products and services with an eye toward profit. A real public conversation, I believe, is necessary if we are to have any coherence or even humanity in our approach to embryos and to all of the people who have a stake in them.
Of the five dozen or so people I interviewed for this project, none seemed confident that a good-faith societywide conversation around these questions was possible in America today... (MORE - details)
EXCERPTS: In February 2024 the Alabama Supreme Court ruled that these lost embryos were “extrauterine children,” allowing the three families to proceed with lawsuits against the fertility clinic under the state’s 1872 Wrongful Death of a Minor Act. Between the creation of these embryos and their destruction and as the cases wound their way for years through Alabama’s courts, their meaning shifted: No longer potentially destined for research or disposal, each embryo had taken on the status, in the court’s interpretation, of a minor child.
The ruling swiftly established what had long eluded abortion opponents: unambiguous personhood for embryos. But this new legal status also instantly jeopardized in vitro fertilization practice across Alabama, sending clinics and patients scrambling amid confusion over what kind of liability clinics bore for the embryos — now legally children — in their care...
[...] Less than three weeks after the court ruling, Alabama’s legislature passed a law protecting I.V.F. providers from civil and criminal liability. Gov. Kay Ivey swiftly signed it, over opposition from anti-abortion groups, which argued it offered no accountability whatsoever for clinical mishaps. The law studiously avoided addressing any of the ethical questions raised by the court ruling and the furor that ensued.
If I.V.F. was to be protected, did that mean embryos didn’t really have full personhood? Or if embryos did have full personhood, what kind of law would protect a business from liability in the event of it destroying an entity legally considered a child? The uncertain moral status of these clusters of cells burst into view, undermining any attempt to put them into a neat legal category.
Since then, confusion about how to answer these questions has generated yet more confusion, as voices from across the political spectrum have weighed in with hot takes and legislation...
[...] The murkiness of embryos’ status has sent courts on strange detours in their legal reasoning. In a 2023 Virginia case a judge was tasked with deciding whether two frozen embryos should be awarded to Honeyhline Heidemann, who wanted to implant them, or kept frozen, per the wishes of her ex-husband, Jason Heidemann. Ms. Heidemann asked that the embryos be considered property, so they could be assigned to her like any other salable item. Mr. Heidemann said each was unique and nonfungible and thus could not be treated as personal property.
The case, as Leah Libresco Sargeant wrote, turned embryos into “Schrödinger’s persons,” resulting in “one parent bizarrely needing the embryos to be considered persons in order to prevent them from being born and the other parent needing to argue the children were property in order to let them be born.” Eventually, Judge Richard Gardiner reasoned that “as there is no prohibition on the sale of human embryos, they may be valued and sold and thus may be considered ‘goods or chattels.’”
The reliance on slavery-era codes immediately raised eyebrows. In March another judge rejected Judge Gardiner’s rationale, calling his reasoning that human embryos could be valued and sold, as enslaved people once were in Virginia, “a strained construction.”
[...] The Texas Legislature has gone to great lengths to protect the interests of embryos. Its abortion ban, one of the strictest in the country, defines an “unborn child” as “an individual living member of the Homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development.” The Texas Penal Code defines an individual as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”
The legislature, however, specifically created a carve-out for I.V.F., exempting death of an “unborn child” from murder or manslaughter charges when they are caused by a lawful medical procedure performed by a licensed provider in the context of assisted reproduction. But when offered the chance to extend this status to I.V.F. embryos in a divorce case, no Texas court has yet seemed willing to do so...
[...] For years, it has largely been anti-abortion groups that intervened in cases involving embryos, using these private lawsuits as means to a public end: to help secure an embryo’s status as a full legal person, as the Harvard legal scholar I. Glenn Cohen pointed out to me. Yet when that goal was taken to its logical extreme, through the pronouncement of the Alabama Supreme Court, some in the little-known world of embryo adoption found themselves wincing at what felt like an own goal.
[...] after the Alabama court’s decision came down, several people in the embryo adoption world told me that personhood for embryos would make their work harder, not easier. Dr. Jeffrey Keenan, a Christian fertility doctor who oversees the nation’s largest embryo adoption program, in Knoxville, Tenn., said the ruling denied “basic biology and reality.” “The majority of embryos, even embryos created through natural intercourse, do not go on to form babies,” he told me. “To say that they are all ‘children’ is incorrect.”
There are also people thinking about how the concepts of embryonic and fetal personhood could be deployed in surprising ways. The legal scholar Michele Goodwin pointed out that under those concepts, the embryos of undocumented pregnant women could qualify for citizenship, although she emphasized that a conservative political agenda wouldn’t extend personhood rights that far.
Ms. Goodwin, the author of “Policing the Womb: Invisible Women and the Criminalization of Motherhood,” also suggested that establishing full rights for embryos and fetuses could make people and businesses liable should a pregnancy go awry, giving the examples of manufacturers or factory farms that pollute their communities, people who spray toxic pesticides or landlords who don’t properly maintain a home in which a pregnant person resides.
[...] The questions raised by these legal scenarios, some unfolding with increasing regularity, should spur us to grapple with the current inconsistencies in our laws and ethics. These questions are likely to become even more salient in the years ahead: Hundreds of thousands of people undergo I.V.F. every year in the United States; hundreds of thousands more get divorced. Procedures go awry. Clinics make mistakes. As a result of these ordinary events, people will continue to contest the meaning and fate of embryos in courts, where, as we have seen, there are few consistent guidelines.
Over the years, philosophers, legal scholars and bioethicists have thought through these quandaries in the pages of academic journals...
[...] Without dialogue and debate, transparency and understanding, we risk a future in which embryo governance — or lack thereof — will be decided by religious critics of I.V.F. ruling from the bench or enthusiastic techno-optimists developing products and services with an eye toward profit. A real public conversation, I believe, is necessary if we are to have any coherence or even humanity in our approach to embryos and to all of the people who have a stake in them.
Of the five dozen or so people I interviewed for this project, none seemed confident that a good-faith societywide conversation around these questions was possible in America today... (MORE - details)
