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Alabama’s Supreme Court Rules IVF Embryos Are Children

The Story: Alabama’s Supreme Court invoked Christian faith and the state’s constitution in ruling that frozen embryos created and stored in IVF clinics can be considered children under state law.

The Background: The court’s ruling involves a case in which embryos stored at a fertility clinic were accidentally destroyed.

In December 2020, a patient at an Alabama hospital managed to wander into the fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. As the court notes, “The subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.”

Several parents of these embryos sued the clinic under Alabama’s Wrongful Death of a Minor Act, a statute that allows parents of a deceased child to recover punitive damages for their child’s death. A trial court originally ruled that because cryopreserved embryos (i.e., children in the embryonic stage put in suspended animation) don’t fit within the definition of a “person” or “child,” the loss couldn’t be considered a wrongful-death claim.

The Alabama Supreme Court disagreed, stating that “the Wrongful Death of a Minor Act applies on its face to all unborn children, without limitation.” The Court noted that Article I of the state’s constitution of 2022 “acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” That section, titled “Sanctity of Unborn Life,” operates in this context as a constitutionally imposed canon of construction, directing courts to construe ambiguous statutes in a way that “protect[s] . . . the rights of the unborn child” equally with the rights of born children, whenever such construction is “lawful and appropriate.”

In a concurring opinion, one justice wrote that this ruling provided an “opportunity to examine the meaning of the term ‘sanctity of unborn life’ within state law. In explaining the meaning of the term, the justice cites Genesis 1:27, John Calvin, Petrus van Mastricht’s Theoretical-Practical Theology, and the Manhattan Declaration: A Call of Christian Conscience (a statement signed by TGC cofounder Tim Keller as well as Council members Danny Akin, Robert C. Cannada Jr., Bryan Chapell, David Dockery, Tom Nelson, and David Platt). He concludes,

In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life—that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

The defendants in the case asserted that treating extrauterine children (i.e., unborn children who exist outside the womb) as “children” for purposes of wrongful-death liability will “substantially increase the cost of IVF in Alabama” and could make cryogenic preservation onerous.

Why It Matters: The Alabama Supreme Court decision is one of the morally clearest rulings of the decade. As it rightly asserts, unborn children are “children” and deserve appropriate legal and ethical protections. Unfortunately, many Christians—including those who consider themselves “pro-life”—are lacking in similar moral clarity.

Whether in the womb of a woman or in a fertility clinic’s storage locker, all human embryos have the same moral status and deserve the same level of protection from harm. The pain of infertility doesn’t provide an exemption from this obligation. Yet numerous Christians have participated in IVF in a clearly immoral way.

The problem is that children who are conceived through the process of IVF, who are in the embryonic stage of development, and who aren’t implanted in a mother’s womb are cryogenically frozen and put into storage. The U.S. Department of Health and Human Services estimated in 2020 that “at least 600,000 frozen embryos were in storage nationwide.” According to the National Embryo Donation Center, that number could be as high as 1 million.

The cost of storage usually runs from $500 to $1,000 a year per IVF patient, leading many parents to abandon their created but unimplanted children. This means hundreds of thousands of children have been abandoned, often left until they die. Many are left behind by Christian parents. Why is this reality not considered scandalous?

Many Christians simply haven’t thought biblically about the issue of IVF. Even those who’ve considered the procedure don’t always agree on whether it can be done in a God-honoring way.

With no explicit biblical directives, divergent views are inevitable (I tend to oppose IVF while respecting those who disagree). Yet certain practices within the realm of IVF are unequivocally unethical and should never be done. Creating more embryos than will be implanted is the most glaring example.

A single IVF treatment can cost between $15,000 and $30,000. The likelihood of success is low, with the best technique offering less than a 50 percent chance a live birth will occur.

To lower the cost and increase the chances of pregnancy, it has become a common practice for more embryos to be created than will be implanted. This has led to a grim reality where U.S. fertility clinics often function like dystopian orphanages, generating children only to leave them in a state of indefinite limbo, ultimately leading to their deaths.

While the additional costs incurred to avoid ethical transgressions might be significant or even insurmountable, the ethical price of embryo destruction is far greater. It contravenes God’s will to forsake or terminate one’s child for the sake of cost or convenience. Our duty as Christians and parents is evident: we must never intentionally bring a child into existence if we anticipate his or her abandonment and subsequent death. If IVF cannot be pursued in a biblically moral manner, it shouldn’t be pursued at all.

The Alabama Supreme Court has correctly applied the concept of “sanctity of life” to children outside the womb. It’s time for the church to do the same.

Related: Breaking Evangelicalism’s Silence on IVF by Matthew Lee Anderson and Andrew T. Walker / How IVF Can Be Morally Right by Wayne Grudem

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