By Chuck Donovan

Last February, the Alabama Supreme Court issued a ruling on the status of human embryos created via in vitro fertilization (IVF) — a ruling that had ironic results. Rather than find that human beings created in this manner represent things of limited value, the court — siding with parents whose embryonic children were destroyed against their wishes via lax security at the clinic where they were stored — ruled that the embryos were persons within the meaning of Alabama law.

The media and popular reaction to the decision was swift — and negative. By valuing the embryos as it did, the court sparked alarm among advocates of IVF that its availability would be curtailed as a result if embryos were treated as the legal equivalent of children at other stages of development. The entanglement of the issue with the abortion question emerged, and reactions from political actors across the spectrum were strong. Even pro-life figures like Senators Ted Cruz (R-Texas) and Katie Britt (R-Miss.) stepped forward and announced their support for a bill to bar federal Medicaid funding to any state that banned IVF within its jurisdiction.

Alabama’s conservative legislature likewise acted swiftly after the state’s IVF clinics suspended their services in the aftermath of the court ruling. In the first week of March, Governor Kay Ivey (R) signed a shield law that protected IVF providers from liability lawsuits over actions that lead to the damaging or death of human embryos in their clinics. The new law allowed the clinics to resume their services. By summer, then-candidate Donald Trump carried the issue further, responding to questions about his views on abortion by announcing his support for federal action to compel either government or private insurance companies to cover the cost of IVF procedures.

The irony of a court decision that ultimately protected clinics from liability and not embryos from negligent destruction is stark. Schoolchildren are persons, but a ruling to that effect would not be likely to lead to a law exempting bus drivers from injuring or killing them through negligence on the road. What is going on here? The answer is complex and has some things, but not everything, to do with the politics of abortion. IVF is a process that has led to the conception and birth of children to millions of infertile couples, as well as to single parents and same-sex couples via surrogacy. Worldwide between 1978 and 2022, some 12 million children are estimated to have been conceived and carried to term with the assistance of IVF.

In many ways, the Alabama ruling may prove to be beneficial in the long run. First, it reflects the high stakes that are involved in the practice of IVF, which entered medical history with the birth of Louise Joy Brown in July 1978. There should be no debate at all about the significance of this human being or the value of her life. On the other hand, provided it happens, the dramatic array of questions that arise about the status and treatment of “test-tube” babies can now be debated anew as half a century of experience with the practice has passed with little or no discussion in many countries.

One essential place to begin that discussion is with a new white paper published by the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG). Like the Alabama Supreme Court, the AAPLOG committee holds for the full humanhood of children conceived in the laboratory. The debate begins, but does not end, there. The paper does not call for the practice to be outlawed but it likewise does not accept the idea, reflecting practice in the U.S. if not generally, that there must be no limits on IVF and no practices designed to serve the safety and well-being of IVF babies and their families.

The questions are manifold, but first a look at what is known and unknown about IVF in the United States. The report is in the form of what AAPLOG calls a “committee opinion,” a document designed to guide medical personnel on what constitutes the best and most ethical practices. The opinion is titled “Ethical Treatment of Human Embryos,” and it underscores the considerable gaps in our knowledge about what is transpiring today in clinics and laboratories.

For example:

• “Approximately 50% of fertilised human eggs fail to develop during IVF treatment.”
• “Current estimates for the number of embryos that do not survive or are destroyed, discarded, or frozen for storage under usual IVF practices range from 90 to 98%.”
• “According to the Society for Maternal-Fetal Medicine, IVF is associated with increased risk for several adverse maternal and perinatal outcomes, including monozygotic twins (even with single embryo transfer), multifetal pregnancy, placental implantation disorders, hypertensive disorders of pregnancy, and stillbirth.”
• “The embryos that progress at least 2-3 days are graded for quality and either transferred to the mother, frozen, or discarded.”
• “A 2020 study indicated over 1.2 million embryos were then in storage freezers. Some estimate that there are now 1.5 million embryos in freezers in the U.S. alone.”

All of this data is expressed in terms of estimates and ranges because of the lack of comprehensive reporting, which is an increasing issue with induced abortions as well. Other knowledge gaps exist around such practices as the creation of embryos for research. Though many researchers oppose the creation of embryos for experimental purposes and the 1996 Dickey-Wicker Amendment prohibits the use of any federal funds for the purpose, temptations for expansion of this activity to search for the cause of genetic anomalies or to test drugs continue to entice advocates. Genetic screening of embryos, including for sex selection in IVF, is also occurring.

The future holds an array of ominous practices where, in the name of science and humanity, more and more children are born via in vitro practices, genetic selection, and artificial wombs. Artificial intelligence, naturally or unnaturally enough, is making its entrance here.

The AAPLOG committee opinion is critical reading. Despite the panicked response of politicos to the Alabama court’s scientifically accurate and far-seeing ruling, the rush to enshrine IVF in federal and state law may be slowing. The recent decision by House and Senate leaders to remove expanded support for IVF from the National Defense Authorization Act (NDAA) will be helpful, especially if it encourages intense congressional examination of the range of issues involved in the extrauterine creation of human life.

The committee opinion is particularly helpful in making 14 recommendations for the future of Assisted Reproductive Technology (ART) and five more for the conduct of research utilizing human embryos. The opinion notes, again, that it does not reflect consensus opposition to all use of IVF but that it “does take the position that embryo destruction during the process of IVF is unethical.” Among its key provisions are that “all women should receive complete informed consent, and every effort should be made to utilize restorative reproductive medicine as a treatment for infertility.” New initiatives are needed to seek the underlying causes of infertility, a subject that should be of interest to a new administration concerned about how existing practices with medications and environmental influences may be affecting individual health.

The opinion calls for an immediate worldwide moratorium on the creation of both integrated and nonintegrated Human Embryonic Models (HEMs). These are human embryos created not through the use of sperm and eggs but via human embryonic stem cells (hESCs) or induced pluripotent stem cells (hiPSCs). Current policy allows experimentation on these beings up to 14 days of development, but a proposal is under consideration in the United Kingdom, at the forefront of the test tube revolution since the beginning with Louise Brown, to expand the developmental time period for experiments dramatically.

As Americans hear or read about children being born who might otherwise not have joined us, the immense ethical challenges posed by these therapeutic and experimental techniques can slip behind the clouds. The rush of Republican and other voices to establish a permissive “Wild West,” no-liability framework for the IVF industry is heedless and unconscionable. The nation needs a full-scale debate on what and who we are and whether we all have the same worth.

Chuck Donovan served in the Reagan White House as a senior writer and as Deputy Director of Presidential Correspondence until early 1989. He was executive vice president of Family Research Council, a senior fellow at The Heritage Foundation, and founder/president of Charlotte Lozier Institute from 2011 to 2024. He has written and spoken extensively on issues in life and family policy.