IVF, Double Effects, and Risks to Embryonic Persons

The Alabama Supreme Court recently held that embryos are children for purposes of the state's Wrongful Death of a Minor Act, causing in vitro fertilization (IVF) clinics to halt operations. While an emergency measure was passed to allow fertility services to resume, the governor made clear that it was a temporary fix and that regulations could follow. Indeed, some argue that IVF would have to be outlawed given the risk of loss of embryonic life inherent therein. But lawmakers could use the doctrine of double effect to justify IVF as a means of assisting people to have children notwithstanding a foreseen but unintended risk of loss of embryonic life. Even still, if governments intend to take embryonic personhood seriously, legislatures will have to make difficult decisions about whether certain activities such as cryopreservation, preimplantation genetic screening, and multiembryo transfers ought to be restricted to mitigate the risk of embryonic loss.