When the Alabama Supreme Court ruled that fertilized embryos were “extrauterine children,” it did more than imperil the future of in vitro fertilization in Alabama and, potentially, the U.S.
The ruling, on the claimed “wrongful death” of frozen embryos in an accident at a fertility clinic, heightened the conflict between ideology and electability, already about as high as it could get after June 2022, when Dobbs v. Jackson Women’s Health Organization freed the states to snub overwhelming public opinion, enact radical abortion bans — and then lose badly in the midterms.
But now the ideologues have more than a political problem. They have a moral one too.
When most of Alabama’s fertility clinics suspended operations in fear that dropping a vial might be prosecuted as manslaughter and patients were left anguished in the middle of time-sensitive treatments, the GOP faced the present, palpable harms inflicted on real people by its abstract religious pieties. And these harmed parties were not baby killers. They were among the 1 in 7 women afflicted by infertility, and they were desperate to have babies.
The predicament landed hard. As the national press closed in on the Alabama Legislature, its panicked Republican supermajority hurried through a bill giving full legal and criminal immunity to IVF providers for the death or destruction of embryos. The bill passed the House by a vote of 94 to 6, including most of the chamber’s 27 Democrats, and unanimously in the Senate. Some Democrats objected that the blanket immunity exposed patients to malpractice without recourse, while Republican opponents still wanted protection for the embryos. The GOP’s state PAC defended supporters as casting “a pro-life vote.”
The more radical elements of Alabama’s “pro-life” community did not agree. The American Action Fund posted a petition on Facebook attacking Republican lawmakers who “voted to give immunity to any IVF provider who ‘intentionally causes the death of an unborn child,’” putting quotation marks around a phrase that is not in the statute and pressing for repeal. D.J. Parten, founder of a group that crafted legislation to prosecute self-managed abortion as murder, called the IVF legislation the “immunity for murder” bill. Eric Johnston, president of the Alabama Pro-Life Coalition and author of the state’s abortion ban, told AL.com that he’d contacted the Senate pro tempore to work out the next steps, which sounded like a reversal. “If [embryos] are destroyed,” Johnston said, “there needs to be some repercussions for that.” Then what for IVF? He didn’t say.
And while the Republicans were busy biting each other’s backs, Democratic candidate Marilyn Lands walked away with a special election for a vacant state House seat. Having focused her campaign on abortion rights, she added the threat to IVF. On March 26, she beat her opponent 2 to 1.
The battle moved north to Capitol Hill. Illinois Democratic Sen. Tammy Duckworth introduced a bill to protect “access to assisted reproductive technology, and all medical care surrounding such technology.” A Republican senator blocked the bill because it imperiled embryos, and it died on the floor.
House Republicans released a 2025 budget containing the Life at Conception Act, which would grant full legal rights “from the moment of fertilization.” It had 120 sponsors. The Senate version made an exception for IVF, but the senators couldn’t sway the lower chamber. The Republican National Committee urged candidates to come out strongly for fertility care.
Conflict churned, not just between religious morality and political reality, but also between Republicans crusading to deregulate everything public — from greenhouse gas emissions to payday lenders — and Republicans pouring their hearts and political capital into regulating everything personal, particularly what people do with their bodies.
At least one prominent player tried to split the difference. The fiercely anti-regulation Heritage Foundation released a position paper titled “Why the IVF Industry Must Be Regulated.”
“You cannot support IVF and support fetal personhood. … You are not fooling anyone.”
Unsurprisingly, it is a weird document. “The well-being of children, not profit margins, should be the top priority when it comes to IVF and embryonic cryopreservation,” proclaims the writer, senior research associate Emma Waters, sounding like a perfect socialist-feminist. She goes on to decry preimplantation testing for heritable conditions, which disability justice advocates also oppose, and preselection for sex or eye or skin color, which many feminists of color and critics of human genetic engineering condemn. Waters refers to these practices, provided by the majority of U.S. fertility clinics, as “eugenics,” which they are.
The paper proposes regulations including “true informed consent,” based on full explication of the risks and success rates of the treatment, and the prohibition of embryonic genetic testing and sex selection “in pursuit of the ‘perfect’ child” — regulations common throughout the EU and the U.K.
But if Europe promulgates rules to protect patients and children born through reproductive technologies, the children whose well-being most concerns the Heritage Foundation are the unborn ones. The paper’s first recommendation not-so-obliquely endorses embryonic personhood: “Impose a standard of care in IVF clinics sufficient to prevent the wanton or careless destruction of embryonic human beings.” Waters praises the Alabama judge, whose ruling “reassures parents who rely on IVF that their children will receive the same legal protections as everyone else’s.”
Alas, even a pro-regulation encyclical from the mother church of deregulation did not resolve the GOP’s dilemma. Sen. Patty Murray, D-Wash., put it succinctly: “You cannot support IVF and support fetal personhood laws. They are fundamentally incompatible!” she said. “You are not fooling anyone.”
Aside from the Heritage Foundation, there is another group of pro-lifers who believe they can have it both ways. That is, the practitioners of embryo adoption, a small but growing niche occupying the space where the fertility and adoption industries meet, inside a community populated almost entirely by evangelical Christians. The embryo adoption communities both condone IVF out of compassion for the infertile and are working to liberate, one by one, the treatments’ leftover embryos, which Catholic bioethicist Kent Lasnoski describes as the “frozen generation” and Baptist preacher John Piper calls the “orphaned unborn.”
These agencies match donors who’ve been through IVF and have unused fertilized embryos with would-be parents, most of whom have already tried and failed in multiple rounds of IVF, fostering, and/or traditional child adoption. The agents interview and screen both sides, suggest propitious pairings, and facilitate the delivery and implantation — called transfer — of the thawed frozen embryos. Some programs are all-inclusive, with their own clinics and home study experts; others offer services a la carte and recommend outside providers. Donors are not paid, yet the exchange promises them the satisfaction and security, and perhaps the relief from guilt, of giving their “children” a good home. Recipients get a bespoke baby, selected for genetic health, sex, race, and other characteristics, plus the experience of pregnancy, birth, breastfeeding, and “early bonding.”
But the agents do not view themselves only as individual adoption brokers. They are missionaries: rescue teams searching out “snowflake babies” shivering in cryostorage and bringing them into the warmth and shelter of womb, family, and church. “Just as each snowflake is frozen, unique and a gift from heaven, so are each of our Snowflakes Babies,” explains the Snowflakes Embryo Adoption Program, founded in 1997 by the Christian adoption nonprofit Nightline. “We hope to help each donated embryo grow, develop, and live a full life. In the intricate design of each flake of snow, we find the Creator reflecting the individual human heart.”
And if it doesn’t work, if an embryo dies while thawing or a pregnancy ends in miscarriage — even if a couple never ends up with a child — all is understood as God’s plan. “If God puts it on our heart to adopt a child, we know that one doesn’t always come home,” one would-be mother told the anthropologist Risa Cromer.
In “Conceiving Christian America: Embryo Adoption and Reproductive Politics,” Cromer calls this “embryo saviorism,” whose ultimate aim is to build the material and spiritual infrastructure “to leverage a niche family-making process for realizing the potential for a conservative Christian country.” And not just Christian. The website photo galleries feature healthy, unambiguously gendered children surrounding coupled, unambiguously heterosexual parents (at the National Embryo Donation Center, adopters must be “a genetic male and a genetic female married for at least three years”). And although women of color suffer far higher rates of infertility than their white counterparts, these families are almost all as white as Easter lilies.
Christian embryo adoption appears to be the embodiment of the anti-abortion slogan “Love them both,” mother and child. But the interests of parents and children, or parents and fetuses or embryos, are not always identical — they are sometimes in mortal battle. Nor can the born and the “unborn” have equal rights. “There is no way to add fertilized eggs, embryos, and fetuses to the Constitution without subtracting women,” says reproductive justice attorney and advocate Lynn Paltrow in the film “Personhood: Policing Pregnant Women in America.”
The IVF-embryonic personhood debate has taught Republicans that you sometimes have to choose a side.
Embryo adoption grew out of the anti-abortion movement. It found a fortuitous place where the adult’s needs and desires and the embryo’s survival are not at odds. But that does not mean it is neutral when it comes to adult needs and desires that clash with the embryo’s. In the 1990s, embryo adopters joined the National Right to Life Committee in lobbying against stem-cell research because it could result in the destruction of fertilized embryos. They continued to push throughout the 2000 elections and beyond, even as public opinion shifted toward valuing potential cures over potential life. In 2006, a group of “snowflake families” stood beside President George W. Bush when he vetoed a bipartisan bill to restore federal funding to the research. Prominent among the families were John and Marlene Strege and their child Hannah, the first “snowflake baby,” born on New Year’s Eve, 1998.
The Streges are still taking sides. In 2021, the family — identified as Hannah S., “a former IVF frozen embryo,” and John and Marlene S., “adoptive parents of the first ‘adopted’ frozen embryo in America” — filed an amicus brief in Dobbs supporting Mississippi’s 15-week abortion ban. Faster than anyone expected, the Supreme Court’s ruling set the U.S. moving toward a time when cells in petri dishes have more rights than the people whose bodies give them life. And when we get there, not even the hand of God will be able to unlock access to the medical procedures and products that allow millions to exercise their human right to have a baby — or not.
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