From today's Washington Post:
Embryos are vessels of hope, pain and love. But they are not children.
The Alabama Supreme Court’s ruling has gone too far
Perspective by
Monica Hesse
Did you know that after an IVF couple undergoes an embryonic transfer, it’s common for their medical clinic to provide a magnified picture of the blastocyst? At three or five days post-fertilization, it doesn’t look like much: a circle, maybe less than a millimeter wide. But if you spend time scrolling fertility message boards, you’ll see a lot of them — would-be mothers sharing pictures of their blastocysts, and strangers enthusing that those blastocysts look cute, or hardy, or feisty, or some other adjective that doesn’t describe a minuscule sphere so much as it points to the hell of infertility treatments. After all this time, you still don’t have a baby, but you do have a blastocyst and a pile of hope.
In December 2020, a patient at Mobile Infirmary Medical Center somehow wandered into the hospital storage facility where embryos created through in vitro fertilization were being kept cryogenically frozen. The patient then somehow managed to remove containers of embryos from their storage receptacles. And
then, shocked by the subzero temperatures at which the embryos had been stored, the patient dropped the embryos and destroyed them.
Several couples, would-be parents whose embryos had been destroyed, brought forth a wrongful-death lawsuit against the hospital, saying that the storage facility should have been properly secured. On Friday, the Alabama Supreme Court ruled on behalf of these couples, the upshot of which became the headline that you probably read earlier this week: The embryos could be considered wrongfully dead because they could have been considered alive.
The embryos were people, according to the court, with all the rights of human children.
If you have never been close to someone who has undergone fertility treatments, then perhaps you aren’t aware of the particulars of IVF: Months of testing. Weeks of home injections on a pinch-an-inch square of stomach fat. Daily clinic visits with intrusive probes, sonograms, measurements, dosage adjustments, more needles — by now you’ve run out of stomach squares, but, land ho! The egg retrieval date is in sight. An anesthesiologist puts you under, you wake up blearily to hear they got seven or 18 eggs. Five days later, the clinic calls to tell you that of those 18 eggs, two or three of them became blastocysts. You’re not pregnant at this stage, so maybe you celebrate with a glass of wine.
I have known women who used IVF before beginning the cancer treatments that they knew would fry their reproductive systems. Women whose first pregnancies ruptured their uteruses and who needed IVF to try again. Women who were right as rain but whose husbands had sluggish sperm, or not enough of it. I have known women who referred to their frozen embryos as their children, who had names already picked out for them, whose embryos were “Eliot” or “Miranda.”
I have known women who successfully got pregnant with their first embryonic transfer, then forgot the other embryos even existed. They were in the middle of getting a breakfast for their preschooler when a call from their clinics about a change in embryonic storage fees made them say, “Wait, you still have those?” One woman told me about getting such a call, then said she cried for the rest of the day, just from the memory of how stressful her fertility treatments had been.
It’s complicated, is what I’m saying. Women who have been through it will tell you that IVF can make you crazy. It’s a marathon that you begin only after you’ve already been walking for so long. The feelings created during fertility treatments exist in a space outside of logic. You know that the egg removed from your body was not yet your baby, because it is, in fact, an egg. You know that the blastocyst fertilized in a petri dish was not yet your baby, because it is not riding home with you in a car seat wearing a onesie. It is, in fact, in a petri dish.
You also know that you are doing this because you hope that one day, with the timing and medical intervention and luck, it will become your baby. You have to keep up that level of hope — that stubborn, illogical level of hope — because otherwise it would be too exhausting to forge ahead. The blastocyst is a baby in the eye of the beholder.
Should it be a baby in the eye of the law?
The Alabama Supreme Court ruled that embryos were people, with all the rights of human children. (Raymond Boyd/Getty Images)
After the blastocyst has grown comes the hard part. Embryos must survive their cryogenic thaw. One must successfully implant in the walls of a uterus that has been carefully primed with a cocktail of hormones. (That’s when you are pregnant and stop drinking wine.) Then, it must grow, and keep growing. Past the embryonic stage, past the first trimester, then the second, through a battery of ultrasounds and doctors appointments, into the delivery room with a doctor and some whip-smart nurses.
The baby is born. It cries. It learns to nurse or drink from a bottle; it learns to sleep through the night. The baby discovers its feet and likes to hold on to its toes while its diaper is being changed, laughing. The baby is now named Owen or Cecilia, by the way. Eliot and Miranda had seemed like the right names for the blastocyst, but once Owen was a person in the world, it became clear that Owen was the right name. Before you were choosing a name for a fantasy future; now you are living in a real present. Eliot was an idea; Owen is a child.
The blastocyst existed in a petri dish and in your heart; the child lives in your heart and in your house.
IVF is a miracle. It’s modern science. It’s a factory, it’s a gantlet, it’s blood, it’s waiting, it’s precise, it’s a crapshoot, cross your fingers, take your multivitamin, it’s hope, it’s hope, it’s hope.
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What happened in the cryogenic freezing room of an Alabama hospital was a damn tragedy. I’ve read over the circumstances a dozen times, trying to make sense of it, based on the limited information we have about an unfathomable sequence of events. The patient who wandered into the storage room and destroyed the embryos — how could they have done such a thing? Did they know what they were doing? Did they even begin to realize the hope they were destroying?
That, at the end of the day, is what’s wrong with the Alabama Supreme Court ruling.
I have seen other writers scornfully note how this ruling represents the further rollback of reproductive rights, and I agree with them. I have seen other writers worry that the abundant biblical quotations used in the Alabama ruling represent a creeping theocracy — and I agree with them.
But at the end of the day, what is wrong with the Alabama Supreme Court ruling is that it is trying to provide legal protection and personhood to fantasies. It is injecting blastocysts with the vast emotional meaning that is natural and necessary for a prospective parent, and that is wholly inappropriate for the legal system.
I cannot imagine that the families in that suit, filled with grief and watching their hopes disintegrate before their eyes, are in a place to fully comprehend the scope of the wrong that was done to them, and what might make it right. I doubt I would be able to fully comprehend it either. But what happened in that hospital in Mobile was the devastation of a dream. It was not the death of a child.
(yes, I'm feeling pretty gloomy tonight!)
