Murder, the SC wrote

Are we ready to murder some children today?

If one works in an in-vitro fertilization (IVF) clinic, that question becomes the frame of reference when dealing with unwanted embryos. That’s because of a recent Alabama Supreme Court decision that shook the legal community and the American political scene.

Here’s what happened. Some couples had embryos stored in an IVF clinic, but a patient wandered into the cryogenic freezer, fiddled with the test tubes, and dropped it to the floor where it shattered, destroying the couples’ last hope for kids of their own.

The would-be parents sue. But do they sue just for damages to address their emotional distress or to recover the value of their property? Do they sue for negligence or breach of contract? Well, all of that, but in addition, they sue for wrongful death. Yes, as in someone died. Meaning something was alive before.

That theory might seem like a stretch, but the stretch turned out to be a slam dunk, as the Alabama Supreme Court agreed with the plaintiffs. In this decision, the court opined that: “Unborn children are ‘children’...without exception based on developmental stage, physical location, or any other ancillary characteristics.”

And that conclusion --that children were somehow present in the picture-- went for those cells as soon as they were forced to merge with each other in a test tube (the court describes them as “extrauterine”). And if one destroys them that is murder!

Uh-oh. If you were running an IVF clinic, what would you do? How would you make sure not to kill these children? Why, you store them forever! And you charge the parents storage costs until infinity! Or better yet, give the embryos to the parents so they can store it in their refrigerator forever, or at least, until a blackout happens, in which case they get charged for parricide.

These are far-fetched scenarios, of course, but in reality, three IVF clinics in Alabama already paused operations until the legal ramifications become clearer. A delivery company has announced it will not deliver embryos. Because, of course, if the Supreme Court has already ruled that the scenario above was a case of wrongful death, what else could they face for how they handle or dispose of embryos in the future?

Or worse --what about all those they already chucked out the trash when the couples said no-go? Or when couples couldn’t afford the storage fees anymore? Would the state prosecutors come sniffing around, seeking to charge them for the (microscopic) killing fields in their labs?

The right-to-lifers are jubilant. Yes, even if the embryo is not in the womb, it is still an abortion. They cannot be killed! But the practical consequence of this position is that less, not more people will be able to have kids. If IVF clinics are scared they will get charged for killing embryos, they will not offer IVF services. And so childless couples will remain just that --childless.

It is fun to see Republicans, who preach conservative positions on abortion, now scramble to stake out a reasonable position that will not make them lose even more votes after that Roe vs. Wade repeal debacle. Already, Biden, Trump, and every politician worth his/her salt have been forced to confront the question and declare their position on the non-murder of IVF babies.

And on this side of the ocean, it will be interesting to see what impact the Alabama ruling could have on our own jurisprudence, because like the Alabama Constitution, our own Constitution protects the life of the unborn child.

Will we stretch “unborn” as well to those in test tubes? Will IVF clinics be liable for murder? Will parents who decide to forego the expensive IVF procedure and authorize disposal of their embryos be held liable as principals or accessories to murder, even if the clinics are located abroad? After all, as theorized by a hypothetical legal whippersnapper, those parents emailed the kill instructions from their safety of their Philippine homes, and hence, there is territorial jurisdiction.

All of these consequences were, for sure, not intended by a perhaps embarrassed but surely embarrassing court. The potential ramifications are mind-boggling. Who would have predicted this impact: That ordinary persons seeking to procreate are now barred from pro-creating by the very people who championed procreation?

As they say, slippery slope. And in the land of the unborn, it’s just become more slippery than a uterus.