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Opinion
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Guest Column
Women, your privacy rights are ephemeral when fetal personhood becomes law
If frozen embryos are legally considered “unborn children,” then IVF — which generates, preserves and ultimately discards multiple embryos — is murder. It’s hard to legislate around that reality.
 
Frozen donated embryos in a storage container at the National Embryo Donation Center in Knoxville, Tennessee. Cryoport, a major embryo shipping company, said on Feb. 23 that it was "pausing" its business in Alabama as it evaluated the state's Supreme Court decision that declared frozen embryos created through in vitro fertilization to be children.
Frozen donated embryos in a storage container at the National Embryo Donation Center in Knoxville, Tennessee. Cryoport, a major embryo shipping company, said on Feb. 23 that it was "pausing" its business in Alabama as it evaluated the state's Supreme Court decision that declared frozen embryos created through in vitro fertilization to be children. [ SHAWN POYNTER | Chicago Tribune ]
Published March 5

The Alabama Supreme Court ruling that frozen embryos have the same legal rights as already born children sent fertility care clinics closing while Republicans tied themselves into rhetorical knots to avoid alienating a powerful portion of their base: people who depend on IVF to have children. Those who celebrated the 2022 Dobbs decision — overturning decades of settled law regarding women’s bodily autonomy — experienced a rude awakening: The right’s steady march toward fetal personhood portends the end of privacy for even well-off consumers of reproductive care.

Caroline Light teaches gender and ethnic studies at Harvard University. She is the author of “Stand Your Ground: A History of America’s Love Affair With Lethal Self-Defense.”
Caroline Light teaches gender and ethnic studies at Harvard University. She is the author of “Stand Your Ground: A History of America’s Love Affair With Lethal Self-Defense.” [ Courtesy of Caroline Light ]

Responding to widespread outrage from constituents, including conservative, white Christians who depend upon fertility care, Alabama’s Republican-controlled Legislature scrambled to pass a temporary bill to protect IVF. Gov. Kay Ivey is expected to sign it into law, but the protections will expire in summer 2025 — after the 2024 election — so Alabamans seeking fertility care to build their families will have a very narrow window of opportunity.

Marya T. Mtshali is an assistant professor of sociology at Bucknell University and is a former postdoctoral fellow at Harvard Kennedy School.
Marya T. Mtshali is an assistant professor of sociology at Bucknell University and is a former postdoctoral fellow at Harvard Kennedy School. [ Provided ]

IVF can be costly and time-consuming. Like other assisted reproductive technologies, including egg donation, artificial insemination, gamete intrafallopian transfer and surrogacy, IVF has proved to be a boon to would-be parents who experience fertility challenges. The Centers for Disease Control and Prevention estimates that approximately 2.3% of the U.S. population was conceived through assisted reproductive technology, involving procedures in which gametes are collected, combined and transferred. Yet each IVF transfer ranges from $15,000 to $25,000, and the procedures are often not covered by medical insurance. Even in states that mandate coverage for fertility treatment, there are significant racial and socioeconomic disparities in its availability.

Widespread outrage over Alabama’s decision obscures a cruel irony: Low-income women of color and others who can become pregnant have suffered for decades under the weight of fetal personhood, the idea that a fetus — which some interpret to mean a fertilized egg — should enjoy the same legal rights and protections as any other (already born) person.

Being low-income and female in the United States is virtually synonymous with a lack of privacy: The state has long justified its interventions into the private lives of poor women by claiming an urgent need to protect children, including the unborn. As a consequence, low-income pregnant people have suffered criminalization for fetal harm, even for unintentional actions or for actions that occurred before a person was aware of their pregnancy. In the near absence of privacy rights, nonwealthy mothers have been exposed to criminal prosecution, as in the recent case of 33-year-old Brittany Watts, a Black woman charged with “abusing a corpse” after suffering a miscarriage.

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Low-income women have long served as canaries in the coal mine, foreshadowing the eventual “trickling up” of state control and surveillance to more affluent populations. Before Dobbs, those who could afford reproductive care — such as fertility treatments, abortion or prenatal health care — needn’t expose themselves to the scrutiny of the state. But the removal of constitutional protections for reproductive care opened the floodgates of governmental control for all people’s reproductive decisions, not only for the poor and disenfranchised.

Recognition of fetal personhood — which is where this pathway eventually leads for states like Alabama and Georgia, which passed a law last year allowing expectant parents to claim unborn children on their state tax return — will eventually bring the harsh glare of state surveillance into our most private decisions, including how and when to start a family. While many might welcome a break on their taxes, the larger dragnet of fetal personhood can and will undermine access to fertility care for would-be parents.

And in this post-Dobbs landscape, those hoping to access fertility care cannot look to the federal government for protection. House Republicans have blocked the Access to Family 4 Building Act, which would have provided federal protection for IVF and other fertility treatments. Combined with the introduction by Rep. Alex Mooney, R-W.Va., of the Life at Conception Act, which has the support of 125 House Republicans, the outlook for would-be parents who depend on assisted reproductive technologies remains tenuous.

If frozen embryos are legally considered “unborn children,” as the Alabama Supreme Court has ruled, then IVF — which generates, preserves and ultimately discards multiple embryos in the often lengthy process of implantation — is murder. And even if Alabama’s Republican-controlled Legislature passed temporary legislation to appease outraged constituents, the writing on the wall is clear: Your privacy rights are ephemeral when fetal personhood becomes law.

Caroline Light is senior lecturer and director of the undergraduate studies program in Women, Gender and Sexuality Studies at Harvard University. Follow her at @carolineelight. Marya T. Mtshali is an assistant professor of sociology at Bucknell University and is a former postdoctoral fellow at Harvard Kennedy School. Follow her at @maryamtshali.