We’ve heard no end of crocodile tear outrage from many quarters over the February 16 Alabama Supreme Court decision on in vitro embryos. The sound and fury being voiced against the decision -- as Macbeth notes -- signifies nothing once you understand what the case was really about, as opposed to how the media and some politicians want to spin it. (I have previously dealt with the topic of fertility clinic disasters in a piece about a Dutch fertility clinic whose technician was a little sloppy with his apparatus, leading to 26 couples not being sure whether the sperm used to fertilize their eggs was actually the sperm [i.e., the father] they wanted to fertilize those eggs.)

The case was brought by two parents who had used the clinic in the hope of having a baby. They produced a fertilized ovum, i.e., an embryo.

Now, there are lots of dirty little secrets about the in vitro fertilization (IVF) business that they really don’t want to tell you amidst the smiling pictures of happy parents. One is that, because IVF costs what it does and obtaining a woman’s eggs is far more complicated than a man’s sperm, women are usually hyper-ovulated by drugs to produce multiple ova that are “harvested” at one time. Because there are no guarantees and frequent failures in fertilization, IVF normally attempts multiple fertilizations simultaneously. After allowing the multiple fertilized ova to develop to a certain stage, the technician then engages in the equivalent of a grade-school popularity contest, deciding which ones are “most likely to succeed,” i.e., be successfully implantable into the recipient woman (who need not necessarily be the egg provider). The one “most likely to succeed” is implanted. The others? Two choices: they are either discarded or frozen for future attempts in case the one “most likely to succeed” doesn’t.

There are probably at least a million cryopreserved embryos in liquid nitrogen in American fertility clinics right now. Some may be used for future pregnancy attempts by the couple. Some may be abandoned. What becomes of them? Never used, do they stay in cold storage? Get “donated” to others? Used for experimental purposes?

The case in Alabama originated because an unauthorized person apparently got into the place the clinic stored frozen embryos. According to National Review, the person unknowingly picked up the container with the frozen embryo, not realizing it was about -400â—¦, got a nasty case of freezer burn, and -- oops! -- dropped it, “terminating” the embryo within.

That’s what caused this case: the parents whose embryo was destroyed wanted compensation. What kind of compensation? For damages? Or injuries?

Things get damaged. Persons get injured.

Alabama has a Wrongful Death of Minors Act. That law has already been established to include the unborn. After all, it somebody shoots a pregnant woman, how many victims are there? What if the bullet grazes her but makes her lose the baby? Is that loss an aggravating factor or do we just count the graze? If a boyfriend abuses a pregnant woman, causing her to miscarry, is that a crime?

For all these reasons, even under Roe, states had laws that made injury to an unborn child an offense under criminal law and a tort under civil law. Are we ready to say that was all wrong? Of course not!

But that’s what the critics of Alabama are really saying.

Alabama’s Wrongful Death of Minors Act covered the unborn. Normally, embryos are in a uterus. Obviously, embryos frozen in IVF labs are not. The narrow legal question Alabama faced -- the question necessary for the aggrieved parents to pursue compensation for injuries – was whether an embryo outside the uterus enjoys the same legal protections as one in it for purposes of protection against injuries. As in the case of an unauthorized person gaining entry or the fertility clinic has more restrictive access to its file room than its freezer section.

The Court said embryos ex utero were covered as persons for that legal purpose. That’s it. That’s the brouhaha that many want to make into a Panzerkrieg against Roe.

Should the parents who suffered somebody else’s error been told, “sorry, no responsibility here. Maybe we’ll give you a free follow-up treatment?”

The clinic opposed coverage of the embryo ex utero under that act because it makes its risk (and negligence) greater. Big Fertility is largely an unregulated, multi-million-dollar annual business. It mostly relies on contracts, not laws. So, being held to general criminal and tort law -- as opposed to a “breach of contract” between parties -- is a big deal. And can cost big, big bucks.

Better to present it as an “assault on a woman’s reproductive choice,” even though it was the woman’s baby that got broke in that lapse. It’s better, because by spinning this story that way, Big Fertility will continue to evade normal accountability -- not to say a closer look at what that business involves in terms of embryonic discards -- while raking in the bucks. Never mind the social justice implications. The real threat is that the Court slightly pulled back the curtain on that business.

Image: BruceBlaus