When the Alabama Supreme Court ruled on February 16th that frozen embryos accidentally destroyed at an Alabama fertility clinic were human beings, protected under the state’s wrongful death statute, Republican leaders around the country quickly asserted their support for in-vitro fertilization (IVF), the process by which those embryos were created.
But that support, even if sincere, is hard to reconcile with the view that human embryos are indeed persons with full moral rights, a view that these same leaders, and most Republicans, have long espoused.
If embryos are human beings, can fertility clinics and their clients really have a right to create them in surplus, freeze them, and store most of them indefinitely, with no intention of ever implanting them once a given client has achieved the desired number of successful pregnancies from the process? The logic of this enterprise makes the embryos’ eventual destruction all but inevitable. The more consistent Republicans understand the full implications of the Court’s ruling and are explicit about their desire to eliminate IVF treatments, either through an outright ban or the most intrusive of regulations.
Some Republicans have attempted to finesse the inconsistency here by claiming that embryos are not “viable” until implemented in a womb. This is a surprising concession: if viability requires implantation, and there is no human being (or wrongful death) before viability, then a human embryo does not intrinsically possess the characteristics that make it a person with rights. Its viability and its personhood depend on its receiving support from the body of the person who carries it. That seems at odds with the idea, so prominent in anti-abortion rhetoric, that an embryo has moral status just in virtue of what it intrinsically is.
It also trades on a cynical redefinition of “viability.” If a newly implanted embryo is “viable,” then so is a frozen one stored at an IVF clinic. Both can develop to maturity if certain choices are made and the relevant biological processes occur without incident. This appeal to “viability” is a verbal dodge, and perhaps also an effort to subvert the established meaning of the concept in discussions of reproductive freedom.
Normally, “viability” refers to whether a fetus could survive outside of the womb. This is a standard that most Republicans (or, at least, Republican leaders) have flatly rejected for determining when abortion is morally and legally permissible. Appealing to viability in the context of IVF is perhaps meant to sound reasonable, but it also serves to co-opt a concept that has had a very different meaning. In the ordinary sense of the term, neither frozen nor newly implanted embryos are viable, nor are early-term fetuses. But that has not stopped Republicans from seeking to prohibit even early-term abortions.
After the court’s ruling, Nikki Haley–who always seems to be trying to say what she thinks she’s expected to–quickly affirmed that she regards frozen embryos as children. Then, when asked about the implications of this position for IVF, she retreated to some vague temporizing that nicely reflects the quandary many Republicans are facing, since it’s hard to see any coherent rationale for prohibiting abortion but permitting IVF.
It’s easy to sympathize with the plaintiffs in the court case, the couples whose embryos were accidentally destroyed. It seems plausible that they might have a damages claim against the fertility clinic. But assuming they value the freedom to seek and receive IVF, they should have thought twice before launching a wrongful death suit based on a premise that can only work to undermine that very freedom.
Darryl Wright is Professor of Philosophy and Chair of the Department of Humanities, Social Sciences, and the Arts at Harvey Mudd College in Claremont. He specializes in moral and political philosophy.