by Alexandra Boussommier-Calleja
Did you know that infertility is a disease? This might not be obvious as it’s not life-threatening for the patient, but it is in fact a disease of the reproductive system. And yet, the recent ruling in Alabama might suggest that it is a lesser one, whose treatment (e.g. in vitro fertilization or IVF) is vulnerable to being arbitrarily criminalized by seemingly unfounded and personal beliefs.
Let’s first review the facts of what happened for those who don’t live and breathe IVF, move on to the potential dire consequences of this ruling to then end with my take on how a constructive middle ground could have been found, and how this decision by extension could put all of modern medicine equally at risk.
1. The facts
a) What happened
In this hard-to-believe case, a patient entered the IVF clinic’s facilities (in Alabama) where their embryos were frozen, tried to take them out of the tank and damaged in the process some embryos, which could as a result not be re-used by their owners. Said embryo owners decided to sue under the state’s wrongful death of a minor statute. As a reminder, wrongful death occurs when someone dies as a result of another party’s negligence, misconduct, or wrongdoing; in this case, it would imply that a minor, or child, has died because of the IVF clinic’s negligence.
At first, this was rejected by a lower court who, like others, has held that embryos are considered property, not people. However, the couples decided to appeal to Alabama’s highest court, “where a majority of justices ruled in their favor, deciding that the wrongful death statute applies to “all unborn children, regardless of their location (read the full article from the Guardian here)”.
b) The dominant scientific perspective
Knowing when, scientifically, an embryo becomes a child is an incredibly thorny issue that I will not have the pretense to summarize here. I will stick to the gist of the scientific consensus that has prevailed so far.
Generally, an embryo is considered to have resulted in a fetus at 9 weeks of gestation. More conservatively, the Warnock report in 1984 has suggested to not perform research in embryos past 14 days of development when the primitive streak appears upon implantation. After this, the embryo can no longer split to form twins, and so this stage could be considered as a marker of individuality. The committee members also knew that before this stage there was absolutely no development of the spinal cord and the nervous system, and thus no risk of suffering. At any rate, both consider an embryo that is implanted in a uterus. In contrast, embryos that develop in the lab do so for only 3 to 7 days at most and remain isolated with no capacity to implant anywhere until their subsequent transfer.
c) A day in the life of an IVF lab
To make a long story short, IVF labs follow strict regulations: embryologists spend an enormous amount of time being audited and meeting high-quality and regulatory requirements. While this unfortunate event should be acknowledged, taken seriously and compensated for accordingly, anyone who has worked in or with IVF clinics can vouch for the fact that it does not represent by any means their awareness of how sensitive the biological material they deal with is.
2. The consequences
Why is this ruling so important? Because defining an embryo as a child means that manipulating it will carry unrealistic liabilities. Don’t get me wrong, even without labeling an embryo as a child, embryologists are incredibly careful with such sensitive biological material. But the reality is that embryos stop developing very often in nature, and thus, also in the IVF lab!
Think about the millions of miscarriages that women go through (knowingly or not) every year (even outside of any IVF treatment): are they wrongful deaths of minors? Does this make them criminal?
Let’s turn to IVF practitioners: when several of the embryos obtained for a patient in the lab stop developing, can this be considered a wrongful death of a minor?
Think about the huge liabilities that are being attached to an inherently inefficient process. Wouldn’t they make you stay away from any embryo, despite desperately wanting to help your patients?
Let’s imagine you wouldn’t: the understandable consequence would be for IVF prices to increase drastically as insurance for such liabilities, making access to IVF even more unequal. Another solution could be to extract only one egg at a time, to ensure no “extra-uterine child” is ever kept frozen, thus terribly decreasing the success rates of IVF. But still: what if this embryo doesn’t develop through no fault of the clinicians, but rather because it didn’t have any chance to start with? Is this a wrongful death?
Within days of the ruling, we have already witnessed the expected consequences: several clinics in Alabama have closed, as the risks both they and their patients might incur have become unfathomable. In the mid-term, the risks are that fewer people decide to become embryologists, adding to the already existing shortage of skilled embryologists that does not meet the IVF demand.
3. Where the debate begins:
a) a scapegoat?
Let’s start by acknowledging that something wrong happened and that the plaintiffs had therefore a rational case to be made. But first: shouldn’t some eyes have turned to the patient who illegally entered the IVF clinic? Don’t we need to set a strong precedent against such risky behaviors, not only because they entered a non-authorized space and could have seriously hurt themselves (handling liquid nitrogen is no joke), but also because they put at risk the embryos of other patients?
Regardless, it is understandable that the plaintiffs sought some kind of compensation for the money and energy spent on obtaining such embryos. My second question here is the following: why not simply file a lawsuit for malpractice? This would set a strong precedent for other clinics to maintain high-security standards, thus constructively participating in advancing the entire IVF field.
Instead, I will speculate that said patients were lured into seeking compensation for a more controversial reason that conveniently fuels the debate recently reopened with the overturning of Roe v Wade. Because, as per the US president’s own words, “Make no mistake: this is a direct result of the overturning of Roe v. Wade”.
Otherwise, does it really make sense that patients who had willingly gone through IVF to become parents and owned frozen embryos as a result would file a lawsuit that would effectively make it all the harder for themselves and others to also become parents?
In other words, it feels like this unfortunate security breach was used as a scapegoat to slam open a door that had been cracked open by the overturning of Roe v Wade last year.
b) a scientific deception?
Make no mistake, this decision has no scientific basis. That being said: should science dictate laws? I’d say it needs to be part of the picture. But creating seemingly new scientific terms such as “extrauterine child” risks legitimizing a decision made by an entirely non-medical committee.
c) a slippery slope beyond IVF
Let’s now imagine a world where fear of what is not natural can limit modern medicine: shouldn’t all hell break loose for the rest of patients too? After all, what is so natural about artificial hips, or about extending lifespan? Modern medicine is by definition not natural: who is to draw the line between the disease that is by all accounts worthy of treatment or not? Do we really want to go down the line of discriminating patients as a function of their disease? Who is to say that it is more important to make someone live longer than to help someone become a parent? The slope is getting more slippery than ever, and not just for IVF but for all of modern medicine.
4. Conclusion
This case crystallizes the ambiguity that exists today towards infertility and IVF: is IVF treated differently because it feels like an unnatural and thus scary technology? If so, have we come to grips with the fact that most modern medicine is not natural? Do we see IVF as an elective and thus second-rate medicine that fearmongers can much more easily hamper? Have we not understood yet that IVF will be an inevitable part of our reproductive future, and should therefore be thoughtfully regulated as opposed to being attacked on the first occasion?
Reassuringly, recent events suggest that more and more countries are realizing that there is a way to provide IVF while ensuring some strong ethical safeguards, offering more insurance for IVF and allowing this technology to be used by more and more patients. Will other US states fail to take the world’s temperature? Only time will tell.
Finally, while it would be tempting to dismiss entirely this case as ludicrous, it probably is a good reminder that all stakeholders involved in IVF could find ways to even more proactively reassure the world of their intent. That is, IVF clinics, companies, investors and policymakers need to send the strong message that human life is not being commoditized, and that no one takes IVF lightly nor underestimates its ethical ramifications. Supporting IVF does not mean agreeing to every door this technology could open in the future. I’m optimistic that we can find a sustainable middle ground between fear mongered and unbridled medicine
As you’ve understood IVF is an incredibly complex, fascinating and humbling topic: no offense to the Alabama Supreme Court, but I can assure you that they do not combine the right skills to make the long-lasting bioethical decision that an embryo is a child. IVF is an innovation that is not just technological, but also societal. Let’s not rush to polarized conclusions which can shut down any hope for a healthy and continuous debate.
To patients and IVF clinicians alike: you deserve better. We will keep stirring this debate and we will keep developing ways to have the back of IVF clinicians so they don’t feel like the weight of our reproductive future lies solely on their shoulders.