The weird way Alabama’s embryo ruling takes on artificial wombs

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A ruling by the Alabama Supreme Court last week that frozen embryos stored in labs count as children is sending shock waves" through the fertility industry and stoking fears that in vitro fertilization is getting swept up into the abortion debate.

The New York Times reports that one clinic, at the University of Alabama, has stopped fertilizing eggs in its laboratory, fearing potential criminal prosecution.

Fertility centers create millions of embryos a year. Some are frozen and others used in research, but most are intended to be transplanted into patients' wombs so they can get pregnant.

The Alabama legal ruling is clearly animated by religion-there are lots of Bible quotes and references to murder" when discussing abortion. But what hasn't gotten as much notice is the court's specific argument that an embryo is a child regardless of its location." This could have implications for future technologies in development, such as artificial wombs or synthetic embryos made from stem cells.

The case arose from an incident at an Alabama IVF clinic, the Center for Reproductive Medicine, in which a patient wandered into a storage area and removed a container of embryos from liquid nitrogen.

That's when the subzero temperatures at which the embryos had been stored freeze-burned the patient's hand, causing the patient to drop the embryos on the floor," the decision recounts. The embryos, consisting of just a few cells, thawed out and died.

Angered by the mishap, some families then tried to collect financial damages. They sued under Alabama's Wrongful Death of a Minor statute, which was first written in 1872, long before test-tube babies.

The question the court felt it had to decide: Do frozen embryos count as minor children or not?

The defendants argued, in part, that an IVF embryo can't be a child or a person because it's not yet in a biological womb. No womb, no baby, no birth, and no child. And this is where things start to get interesting and spiral into science fiction territory.

Justice Jay Mitchell, writing for the majority, pounced on what he called the latent implication" of the defense's argument. What about a baby growing to term an artificial womb? Would it also not count as a person, he asked, just because it's not in utero"?

According to their ruling, the wrongful-death act applies to all unborn children, regardless of their location," and no exception" can be made for embryos regardless of their age, even if they've been in deep freeze for a decade. Nor does the law exclude any type of extrauterine children" science can conceive.

It's common for judges to wrestle with complex questions as they try to apply old laws to new technology. But what's so unusual about this decision is that the judges ended up giving opinions on technology that hasn't been fully invented.

I think the opinion is really extraordinary," says Susan Wolf, a professor of law and medicine at the University of Minnesota. I can't think of another case where a court powered its ruling by looking not only at technology not actually before the court, but number two, that doesn't exist in human beings. They can't make a binding decision about future technology that is not even part of the case."

Bad law or not, the question the Alabama justices ruled on could soon be a real one. Several companies are actually developing artificial wombs to keep very premature infants alive, and other research labs are working with fluid-filled bottles in which they've grown mouse embryos until they are fetuses with beating hearts.

One startup company in Israel, Renewal Bio, says it wants to grow synthetic human embryos (the kind formed by stem cells) until they are 40 days old, or more, in order to collect their tissue for transplant medicine.

All this technology is racing along, so the question of the moral and legal rights of incubated human fetuses might not be hypothetical for very long.

Among the dilemmas lawyers and doctors could face: If a fetus is growing in a tank, would a decision to shut off its support systems be protected under liberal states' abortion laws, which are typically based on the rights of a pregnant person? Would a fetus engineered solely to grow organs, lacking a brain cortex and without sentience, also still be considered a child in Alabama?

So while it's obvious that the Alabama decision reflects the justices' religious views rather than science, and that it could hurt people who just want to have a baby, maybe it is time to think about what the court calls the many difficult questions" the wrongful-death case has raised about the ethical status of extrauterine children."

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From MIT Technology Review's archives

Last fall, my colleague Cassandra Willyard told us everything we need to know about artificial wombs. The experimental devices, she explained, are being developed to give premature babies more time to develop. So far, they've been tested on lambs, but human studies are being planned.

Another kind of artificial womb is used to keep very early embryos developing longer in the lab. A startup based in Israel called Renewal Bio says it hopes to grow synthetic" human embryos this way longer than ever before as a way of bio-printing organs.

After the US Supreme Court overturned abortion protections in 2022, several American states moved to ban the practice. Anticipating that people may seek abortions anyway, we explained how to end a pregnancy with pills ordered from an online pharmacy.

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