By Jennifer Chesak
BBC Features correspondent
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Alabama Supreme Court ruling raises questions about the definition of 'embryo' and whether fertilisation dictates 'personhood'. Here, medical consensus from around the world.
In a recent court case over embryos accidentally destroyed at a fertility clinic, the Alabama Supreme Court ruled under state law that all embryos are "children". However, the global medical and scientific consensus on when reproductive cells become human life says otherwise.
In 2023, three couples filed a wrongful death suit against the Mobile Infirmary Medical Center in Alabama, where their remaining embryos from in vitro fertilisation (IVF) treatment were stored and accidentally destroyed, according to the ruling on 16 February. The Alabama Supreme Court ruled that embryos, including those kept outside of the uterus, are "children" under the state's Wrongful Death of a Minor Act.
The Alabama ruling reverses a lower court's dismissal of the case and allows the wrongful death suit to proceed. The case has raised questions about the definition of "personhood" or "child", which could have future legal ramifications for IVF doctors and their patients. The medical and scientific consensus, however, says embryos are cells capable of creating life rather than consisting of actual life.
"Anyone with eyes (maybe aided by a microscope)...can recognize that a fertilised egg in a freezer in a clinic is not the same as a baby," says Sean Tipton, the spokesperson for the American Society of Reproductive Medicine. "The Alabama Supreme Court may wish that they were the same, but clearly they are not."
What experts say in the United States
Other organisations and agencies in the US have also weighed in. The American College of Obstetricians and Gynecologists issued a statement about the ruling, saying: "The outcome of this case will certainly affect access to fertility treatment across the country as more and more state legislatures advance policies that are based on an ideological and unscientific definition of personhood."
The American Civil Liberties Union of Alabama also issued a statement: "The Alabama Supreme Court has grossly overstepped its role by classifying frozen embryos, single-celled fertilised eggs, as children. Justices have crossed a critical boundary to assign personhood to something created in a lab that exists outside of a human body."
Differing definitions of 'embryo' from around the world
The determination of when personhood begins and what should be defined as an embryo has been morphing in the US and around the globe as new technologies have emerged.
A perspective article published in 2023 in the journal Cell discusses the ethics of embryonic research. In it, the authors from Austria, Spain, the US, the UK and the Netherlands propose a legal definition. They define an embryo as "a group of human cells supported by elements fulfilling extraembryonic and uterine functions that, combined, have the potential to form a foetus".
The researchers propose this definition because of new technologies in which embryos can be formed without fertilisation – beings that may never have been an embryo. Shortly after Dolly the sheep, the first cloned mammal, was born in July 1996, countries began changing their definitions.
Although definitions of what an embryo is differ slightly, the Alabama Supreme Court's ruling that a frozen embryo is a child is unprecedented.
The Netherlands, Belgium, Germany and other countries root their new definitions in "potentiality". Instead of defining an embryo as human life these definitions consider a zygote, which is a single cell and the start of an embryo, "to be capable of generating a human being", rather than being human in its current state.
However, Spain has a slightly different take, defining an embryo as "a phase of embryonic development", but that phase begins inside the uterus.
Although definitions of what an embryo is differ slightly, the Alabama Supreme Court's ruling that a frozen embryo is a child is unprecedented.
"The Alabama ruling is based on an idiosyncratic view of the embryo that is very marginal," says Nicolas Rivron of the Institute of Molecular Biotechnology of the Austrian Academy of Sciences in Vienna, and the lead author of the perspective article in Cell. He says biology defines an embryo as a group of cells that can potentially form a foetus.
"The legal definition of an embryo is different from the biological definition as it does not aim to describe the embryo scientifically, but rather to protect it," he adds. "Legal definitions should be informed by biological insight, yet they are also crafted based on considerations that vary worldwide, as they are rooted in philosophical, ethical, social or cultural beliefs."
Alabama Supreme Court ruling raises questions about the definition of 'embryo' and whether fertilisation dictates 'personhood'. Here, medical consensus from around the world.
In a recent court case over embryos accidentally destroyed at a fertility clinic, the Alabama Supreme Court ruled under state law that all embryos are "children". However, the global medical and scientific consensus on when reproductive cells become human life says otherwise.
In 2023, three couples filed a wrongful death suit against the Mobile Infirmary Medical Center in Alabama, where their remaining embryos from in vitro fertilisation (IVF) treatment were stored and accidentally destroyed, according to the ruling on 16 February. The Alabama Supreme Court ruled that embryos, including those kept outside of the uterus, are "children" under the state's Wrongful Death of a Minor Act.
The Alabama ruling reverses a lower court's dismissal of the case and allows the wrongful death suit to proceed. The case has raised questions about the definition of "personhood" or "child", which could have future legal ramifications for IVF doctors and their patients. The medical and scientific consensus, however, says embryos are cells capable of creating life rather than consisting of actual life.
"Anyone with eyes (maybe aided by a microscope)...can recognize that a fertilised egg in a freezer in a clinic is not the same as a baby," says Sean Tipton, the spokesperson for the American Society of Reproductive Medicine. "The Alabama Supreme Court may wish that they were the same, but clearly they are not."
What experts say in the United States
Other organisations and agencies in the US have also weighed in. The American College of Obstetricians and Gynecologists issued a statement about the ruling, saying: "The outcome of this case will certainly affect access to fertility treatment across the country as more and more state legislatures advance policies that are based on an ideological and unscientific definition of personhood."
The American Civil Liberties Union of Alabama also issued a statement: "The Alabama Supreme Court has grossly overstepped its role by classifying frozen embryos, single-celled fertilised eggs, as children. Justices have crossed a critical boundary to assign personhood to something created in a lab that exists outside of a human body."
Differing definitions of 'embryo' from around the world
The determination of when personhood begins and what should be defined as an embryo has been morphing in the US and around the globe as new technologies have emerged.
A perspective article published in 2023 in the journal Cell discusses the ethics of embryonic research. In it, the authors from Austria, Spain, the US, the UK and the Netherlands propose a legal definition. They define an embryo as "a group of human cells supported by elements fulfilling extraembryonic and uterine functions that, combined, have the potential to form a foetus".
The researchers propose this definition because of new technologies in which embryos can be formed without fertilisation – beings that may never have been an embryo. Shortly after Dolly the sheep, the first cloned mammal, was born in July 1996, countries began changing their definitions.
Although definitions of what an embryo is differ slightly, the Alabama Supreme Court's ruling that a frozen embryo is a child is unprecedented.
The Netherlands, Belgium, Germany and other countries root their new definitions in "potentiality". Instead of defining an embryo as human life these definitions consider a zygote, which is a single cell and the start of an embryo, "to be capable of generating a human being", rather than being human in its current state.
However, Spain has a slightly different take, defining an embryo as "a phase of embryonic development", but that phase begins inside the uterus.
Although definitions of what an embryo is differ slightly, the Alabama Supreme Court's ruling that a frozen embryo is a child is unprecedented.
"The Alabama ruling is based on an idiosyncratic view of the embryo that is very marginal," says Nicolas Rivron of the Institute of Molecular Biotechnology of the Austrian Academy of Sciences in Vienna, and the lead author of the perspective article in Cell. He says biology defines an embryo as a group of cells that can potentially form a foetus.
"The legal definition of an embryo is different from the biological definition as it does not aim to describe the embryo scientifically, but rather to protect it," he adds. "Legal definitions should be informed by biological insight, yet they are also crafted based on considerations that vary worldwide, as they are rooted in philosophical, ethical, social or cultural beliefs."
When does personhood begin?
In a 2013 blog post published by the Public Library of Science, an open-access publisher for science and medicine, geneticist Ricki Lewis offers a timeline of embryo development and gives her own opinion for when personhood may start.
"The ability to survive outside the body of another sets a practical, technological limit on defining when a sustainable human life begins," is Lewis’s view on the topic. "Having a functional genome, tissue layers, a notochord, a beating heart…none of these matter if the organism cannot survive where humans survive."
Richard Paulson, director of University of Southern California Fertility, wrote in an editorial for F&S Reports, the journal of the American Society of Reproductive Medicine, that "the concept of 'life begins at conception' is neither scientific nor a part of any (ancient) traditional religious teaching."
"The writers of the Bible (as well as other religious texts)," he continues, "knew nothing about eggs, sperm or fertilisation. It was only after medical science revealed the basic steps in embryonic development in the mid-20th century that some religious groups seized on the idea that human life must therefore 'begin' at fertilisation."
What are current practices regarding the destruction of unused embryos in IVF?
With IVF procedures, often supernumerary – or extra – embryos exist, and patients need to make the decision as to whether to have their embryos stored, donated or destroyed.
"In IVF as in nature, only a small proportion of fertilised eggs are able to implant and grow even when we create the ideal conditions for a successful pregnancy," says Sue Ellen Carpenter, a fertility doctor at Bloom Fertility in Atlanta, Georgia. "To me, embryos occupy a unique moral space. They are potential life and, accordingly, require respect and special care."
In the case before the Alabama Supreme Court, a patient entered the cryogenic nursery in 2020, removed the embryos in question from the freezer, and accidentally dropped them on the floor when the embryos "freeze-burned" their skin, according to the ruling.
Although the Alabama clinic did not intentionally destroy the three couples' frozen embryos, IVF embryos are routinely destroyed if they don’t meet the criteria for transferring to a womb for implantation or if patients have completed childbearing and do not wish to have more children.
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Such embryos are often destroyed without ceremony. A 2019 study collected data from 703 questionnaires from clinicians from 65 different countries on the practice of discarding unused embryos that patients do not plan to or cannot use. The study results reveal that most practitioners dispose of embryos in a dedicated "trash can".
In a 2022 article published in the journal Obstetrics & Gynecology, authors from various universities in the US issued commentary on concerns following the 2022 US Supreme Court ruling in Dobbs v Jackson Women's Health. The ruling overturned Roe v Wade, which granted the federal right to an abortion.
The researchers note that embryonic loss is a "routine part of nature." They continue: "When new abortion legislation defines personhood from the time of fertilisation, the door is opened to regulation of embryos in the IVF laboratory. Laws may be enacted that prevent embryo cryopreservation because of the potential for embryonic loss."
The concerns they include are whether patients would be forced to continue additional embryo transfers, even when they do not desire additional children, or required to pay for embryonic storage "in perpetuity".
These questions and others remain unanswered in the wake of the Alabama Supreme Court ruling. Of note, several fertility clinics in the state have already ceased providing some IVF treatments.
Such embryos are often destroyed without ceremony. A 2019 study collected data from 703 questionnaires from clinicians from 65 different countries on the practice of discarding unused embryos that patients do not plan to or cannot use. The study results reveal that most practitioners dispose of embryos in a dedicated "trash can".
In a 2022 article published in the journal Obstetrics & Gynecology, authors from various universities in the US issued commentary on concerns following the 2022 US Supreme Court ruling in Dobbs v Jackson Women's Health. The ruling overturned Roe v Wade, which granted the federal right to an abortion.
The researchers note that embryonic loss is a "routine part of nature." They continue: "When new abortion legislation defines personhood from the time of fertilisation, the door is opened to regulation of embryos in the IVF laboratory. Laws may be enacted that prevent embryo cryopreservation because of the potential for embryonic loss."
The concerns they include are whether patients would be forced to continue additional embryo transfers, even when they do not desire additional children, or required to pay for embryonic storage "in perpetuity".
These questions and others remain unanswered in the wake of the Alabama Supreme Court ruling. Of note, several fertility clinics in the state have already ceased providing some IVF treatments.
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