Embryos as Schrödinger’s Persons

The Alabama IVF ruling reveals peculiar entities that are neither people nor property until we need them to be.
Subscriber Only
Sign in or Subscribe Now for audio version

The fertility industry has put itself in the awkward position of selling persons as a product. That is the problem at the heart of a contentious February court ruling, which found that parents can sue fertility clinics for wrongful death if their IVF embryos are negligently destroyed.

When the industry makes promises to prospective parents about in vitro fertilization, it leans on images of cherub-cheeked babies. And when it pitches to egg donors, it speaks the language of altruism: You can help make a family. But when something goes wrong, the liability-shy industry is quick to retreat to the language of cells and property. IVF relies on treating the embryos it creates, freezes, and often discards as Schrödinger’s persons: we cannot make a moral pronouncement about what they are until we know whether they’re intended for life or death.

The ambiguity surrounding persons conceived by IVF can only be sustained when it escapes scrutiny. But in an Alabama courtroom, this moral double-vision had to be resolved to coherency — and that represents an existential threat to the practice of in vitro fertilization. Courts are particularly well-positioned to expose the contradictions the industry relies on. But the Schrödinger’s-personhood of IVF embryos is a hidden crack in the culture as well as the law. Trying to protect the technology from scrutiny in the courts, as many now want to do, won’t be enough to stabilize it.

Despite the post-decision finger-pointing, in Alabama it was bereaved parents, not the pro-life movement, who put IVF on ice. A wrongful-death case was brought by three families suing a clinic that, they alleged, had negligently allowed their children to be destroyed. The Supreme Court of Alabama’s February 16 decision wasn’t on whether IVF is legal, but on what standard of liability should apply when something goes wrong in a clinic.

The basic facts of what had happened weren’t being contested before the state Supreme Court. An unauthorized person had entered what was meant to be a secure room of the clinic, curiously cracked open one of the cryogenic dewars, and pulled out some of the embryos on ice. The embryos were kept at negative 320 degrees Fahrenheit, the kind of cold that burns, and the intruder dropped the vials, leaving them to defrost and be destroyed.

The clinic had screwed up, no question about it. The legal question was whether the clinic had failed to keep proper custody of a what or a who. It’s a question that IVF clinics intentionally muddy. Parents come to the clinic in pursuit of a child, but the IVF procedure creates spare embryos. The siblings are equal in dignity but quickly wind up separated in language and perceived personhood based on who among the set of brothers and sisters is selected for implantation first.

Families wanted more than a simple claim for destruction of property and the inconvenience of creating or purchasing an embryo of equivalent value. They wanted to hold the clinic to the moral and financial standards of Alabama’s wrongful-death statute. In March, weeks after the state Supreme Court decision, a fourth couple whose children had been negligently destroyed by the same clinic in the same incident filed suit. The family were the beneficiaries of IVF, having previously relied on the clinic to conceive their twins. Perhaps for them, having had two children who were frozen and now were born and flourishing made the loss of other frozen children more acute.

Much of the news coverage of the ruling, LePage v. The Center for Reproductive Medicine, has linked it to the 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. But nothing in the state Supreme Court decision hinged on abortion law. Alabama legislatures and courts had already interpreted the state’s Wrongful Death of a Minor Act, which was enacted in 1872 and last amended in 1995, to apply to children in the womb, including children who had not yet crossed the murky threshold of “viability.” The question before the court, as the majority decision summarized, was whether the status of being unborn children outside the womb specifically excluded the children on ice from the same protection under the law that would apply to other children at the same gestational age within the womb.

The judges offered a hypothetical to explore the question. If children preserved on ice need be transferred to a woman’s womb to gain the protection of the law, what would happen if the day of artificial wombs finally came, and some children were grown to full term without ever being resident in utero at all? Could a decision in the clinic’s favor today mean that, in that future, the lab-gestated babies would be legally unpersoned, because the womb had been held to impart a worth the child did not have on its own? Even though this is a speculative scenario, it only magnifies the real scenario we already face now: new medical technology creates a situation for unborn life that has no prior precedent in human experience, and puts our moral commitments to the challenge.

The judges knew that the humanity of IVF-conceived babies had been a matter of active debate from the first days of the technology. But they didn’t have to reach for the far future to imagine the unintended consequences of clarifying whether people put on pause are people or something else. As a judge in Virginia discovered the prior year, it’s one thing to push children on ice out of the category of “people,” but it’s quite another to find what other category they can comfortably be relegated to.

In a 2023 divorce case between Jason and Honeyhline Heidemann, a Virginia circuit court judge struggled with whether a disagreement about frozen embryos was more like a custody dispute or more like a property dispute. The Heidemanns had created and frozen two embryos before their divorce, and, mindful of her age at 45, Honeyhline wanted to implant the embryos, who might be her last chance at biological children. Jason strongly objected and wanted the embryos kept in indefinite stasis.

Fairfax County Circuit Court Judge Richard Gardiner, trying to decide how best to characterize the two embryos, initially ruled for the husband, saying that for the wife to prevail, she had to be making a claim on “goods or chattels,” and he didn’t believe human embryos were either. His reasoning wasn’t based on an assertion that the embryos were persons, simply that they were not, to his knowledge, bought and sold.

When Honeyhline’s lawyer pushed for reconsideration, the judge decided he had been precipitous: without a law prohibiting the sale of embryos, he had been hasty to say they could not be salable goods. More than that, in doing deeper historical research, he had found a precedent that supported the wife’s claim — though one her legal team “distanced itself” from, as the New York Times put it. Virginia had, after all, previously allowed a thriving market in human persons characterized as chattel — as property. In other words, there was actually plenty of case law to govern how the embryos might be fairly divided if they were regarded as legally analogous to slaves.

Gardiner’s analysis drew national attention and backlash. The legal arguments of the husband drew less scrutiny, but were no less strange. Jason Heidemann had argued that his children could not be chattel because each frozen child was unique and non-fungible. But this is an argument that is easier to imagine in the mouth of a sidewalk counselor outside an abortion clinic, rather than in the briefs of lawyers arguing that Jason had the right to stop the woman he’d conceived a child with from implanting and carrying that child to term. And no parallel right to prevent birth exists for men when an embryo of the same gestational age is already implanted in a woman’s womb.

The case put the absurdity of Schrödinger’s personhood on full display, with one parent bizarrely needing the embryos to be considered persons in order to prevent them from being born and the other parent needing to argue the children were property in order to let them be born.

Of course, the normal operation of IVF clinics always assumes that parents have a right to order their embryos destroyed. In this year’s ruling in Alabama, the problem was that the clinic did not enjoy the same power of life and death over the embryos that was habitually granted to the parents. There was nothing wrong, in the eyes of Alabama, with defrosting and destroying an embryo, provided the right party did it.

In the majority decision, the court noted that these assumptions could have represented the clinic’s strongest defense against the bereaved parents’ claims. As the court observed, “All the plaintiffs signed contracts with the Center in which their embryonic children were, in many respects, treated as nonhuman property.” One family opted to automatically destroy any unused embryos after five years. Another committed to donate extra embryos to medical research. The final couple stipulated in their contract with the clinic that any “abnormal embryos” could be used for experiments and then discarded.

The clinic argued at the state Supreme Court that the parents, by consenting to these provisions, had implicitly conceded that their children were not persons. A spare child can’t be killed or turned over to scientists for destructive research. The clinic and parents had already agreed in the provisions of their contract to a form of Schrödinger’s personhood — the clinic was supposed to treat the embryos as (potential) persons, but the parents had no corresponding duty of care to the children. The Alabama judges didn’t rule on the merits of this claim; they simply noted that they couldn’t consider arguments that hadn’t been introduced at the trial level.

Immediately following the Alabama decision, clinics put planned transfers and treatments on hold. Facially, the court decision had only raised the stakes for clinics guilty of negligent destruction of embryos. But in practice, IVF depends upon somebody being allowed to destroy embryos, and the industry’s response shows how much it depends on a helpful haze around personhood. The Alabama case, which required the court to resolve this superposition, was a threat.

The parents who had lost their children in Alabama were ruining things for everyone. They were inconvenient in the same way as parents who wish to mourn a miscarriage as a lost person, not a lost possible future. As much as they tried, even those who wanted to absolve the parents for their overreaction were unable to, well, split the baby.

In an opinion piece for the New York Times, Kristen Soltis Anderson tried to sympathize with the parents while regretting the result of their suit. Anderson had also used IVF and experienced the repeated grief of losing embryos after transfers — not through unusual negligence but the procedure’s ordinary fragility. In those moments, she wrote, “I felt powerfully that I was saying a very real goodbye.” She saw children in the dish, on the monitor, and then lost them due to failed transfers and miscarriages.

Therefore, she wrote, “I do not for one second fault the plaintiffs for considering their embryos to be their children, awaiting their moment to be born, now irretrievably lost.” The trouble wasn’t their feelings, it was asking the court to give their feelings the force of law. Anderson saw one further refraction of Schrödinger’s personhood. Embryos can be children in your heart, but it’s dangerous to ask for the dead children to be children under the law.

Her essay was more focused on limiting the legal danger for IVF than suggesting what redress the bereaved parents could have licitly sought, or how any pro-choice parent can safely grieve miscarriages without conceding too much personhood to fetuses who die of non-natural causes. Some pro-choice advocates are more comfortable explicitly acknowledging the contradictions.

One abortion doula who spoke anonymously to the Washington Post saw part of her work as covertly providing the means for a self-administered medication abortion, but she also felt a duty to offer an interpretive lens to her clients. She knew the women she helped needed a warning about the size and shape of the “tissue” they’d pass, and her care packages included a small amount of acid, to dissolve the body into a formless clump of cells. “I try to emotionally prepare them,” the doula explained, “and say, ‘It’s going to look like a baby.’”

It will look like a baby, but it won’t be a baby. It will feel like losing a baby, but legally we prefer you not grieve or sue like it was a baby. It can grow like a baby, but in case of abnormality or excess, it has to be able to be thawed and thrown out like it isn’t a baby.

There’s more room in the culture for this kind of doublethink than fits within the precision of law. Alabama, scrambling in a panic to exempt IVF providers from the wrongful-death law, has already found that it’s no easy matter. One lawyer for IVF-bereaved parents objected to limiting clinics’ liability for losing or destroying embryos to the monetary impact wasted in IVF cycles. “The financial costs are the smallest part of people’s damages when their embryos perish,” Adam Wolf argued. Alabama may or may not find a legal way to articulate the lenticular personhood IVF depends on, but the country will keep encountering the impossibility of the industries’ twinned assertions.

Every day more than 250 children who began life in a petri dish are birthed into the light. Every day, more and more of their siblings are consigned to a twilight existence; a quiet Omelas.

Keep reading our Spring 2024 issue

Highways vs. urbanism  •  The IVF problem  •  Depressive AI  •  LSD is back  •  Subscribe

Leah Libresco Sargeant, “Embryos as Schrödinger’s Persons,” The New Atlantis, Number 76, Spring 2024, pp. 39–44.
Header image: blueshot / iStockPhoto

Delivered to your inbox:

Humane dissent from technocracy

Exhausted by science and tech debates that go nowhere?