A recent ruling by the Supreme Court of Alabama, allowing grieving parents to file a lawsuit in the wrongful death of their embryonic children at an in vitro fertilization (IVF) clinic, has been attacked by politicians of both parties.

President Joe Biden denounced the decision as “outrageous and unacceptable.” Vice President Kamala Harris said it is “robbing women of the freedom to decide when and how to build a family.” The Biden campaign blames former President Donald Trump, because his U.S. Supreme Court nominees “overturned Roe v. Wade.” 

But Trump has called on the state Legislature to change the law to ensure access to IVF, saying his party “should always be on the side of the miracle of life and the side of mothers and fathers and beautiful little babies.” His primary opponent Nikki Haley has said she believes IVF embryos are children, but also called for legal change to protect IVF. 

Serious moral objections to IVF have been legitimately raised by the Catholic Church and some non-Catholics. The Church teaches that IVF divorces procreation from the unitive love between the parents, turning it into a laboratory “manufacture” that allows others to manipulate and even discard the child as a product rather than a gift of God. But the immediate objection to all the politicians’ statements is that they have nothing to do with the facts in this case. 

The IVF clinic in Alabama had assured families that it would guard and monitor the freezers storing their embryonic children for future childbearing. Instead, it left the storage room unguarded and its door to the adjoining hospital unlocked. This allowed a hospital patient to wander in, grab vials containing five frozen embryos from three couples, and drop them on the floor when the extreme cold burned her hand. The embryos were killed.

These couples sued the clinic under Alabama’s “Wrongful Death of a Minor Act,” allowing parents to sue for damages if their minor child’s death is “caused by the wrongful act, omission, or negligence of any person” (Alabama Code, §6-5-391). 

The Supreme Court of Alabama had already ruled in 2011 and 2012 that an unborn child at every stage of development qualifies as a “minor child” in this law. Article I of the Alabama Constitution has a “Sanctity of Unborn Life” section that “acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate” (§ 36.06 (b)). In its new ruling, the court only had to decide whether to imagine an “unwritten exception” based on location, or apply the law consistently.

Even the IVF clinic’s attorneys had not challenged the existing laws. They argued that the embryo outside the womb is not a child like the embryo inside the womb. That would immunize the clinic from accountability for its cavalier mistreatment of early human lives. So the politicians are siding, perhaps unwittingly, against parents and with the negligent clinic. The response of Congressman Matt Gaetz, R-Fla., is doubly misguided: The court’s ruling affects tort law, not criminal law, and gives parents themselves the freedom to make these clinics more responsible. 

Two questions remain: First, what does this ruling have to do with Roe v. Wade? Second, why do people claim that it will prohibit IVF?

As a legal matter, what it has to do with Roe v. Wade is … virtually nothing.

In Webster v. Reproductive Health Services in 1989, the U.S. Supreme Court upheld provisions of Missouri’s abortion law. Reversing an appellate court’s decision, the Supreme Court left in place that law’s preamble. It declares that “[t]he life of each human being begins at conception,” that “unborn children have protectable interests in life, health, and well-being,” and that state laws should be interpreted to provide these children with the rights enjoyed by others, subject to the U.S. Constitution as construed by the Supreme Court. 

The justices noted their earlier statement in 1983’s City of Akron v. Akron Center for Reproductive Health abortion case that “a State may not adopt one theory of when life begins to justify its regulation of abortions” (emphasis added). That meant states could respect unborn human life in many other contexts, such as tort and probate law. The Missouri opinion was signed by Justices Sandra Day O’Connor and Anthony Kennedy, who three years later signed the decisive plurality opinion in Planned Parenthood v. Casey reaffirming Roe.

So the “non-personhood” of the unborn child was specific to abortion. Any claim the child may have for respect must fall before the pregnant woman’s supposed right to “terminate her pregnancy.” But a Petri dish or a freezer has no rights, and no third party has a constitutional right to destroy an unborn child wanted by his or her parents. 

Thus most states have laws against fetal homicide, allowing a second criminal charge if someone attacks a pregnant woman and causes the death of her unborn child. The federal statute, popularly known as “Laci and Conner’s Law,” applies this policy to military bases and other federal enclaves. Under the federal Children’s Health Insurance Program, states can provide federally subsidized health insurance to a child not yet born. 

Eleven states even have laws against harmful experiments on human embryos, which often involve IVF embryos outside the womb. The most comprehensive such law is in Louisiana, where the newly conceived IVF embryo has the status of a “juridical person” with a right to due care on the part of the fertility clinic. The embryo may not be subjected to harmful experiments and can be frozen only to prepare for a later pregnancy. (Under Roe, upon entering the womb, the child would lose his or her right not to be killed.)

All these laws have been legally valid while Roe was in effect and remain so since Roe was overturned. Even in pro-abortion states like California, parents whose frozen embryos were negligently allowed to die have successfully sued clinics and been awarded millions of dollars in damages.

As well, rulings like Alabama’s do not prohibit IVF. One fertility center in Louisiana, for example, advertises the availability of IVF at four locations in the state. Missouri also has several active IVF clinics. As the chief justice of the Alabama Supreme Court has remarked, many nations provide IVF under laws and regulations far stricter than those in the U.S. The accusation of a ban seems to be coming from IVF practitioners who want to be exempt from claims of negligence that all other health professionals must concern themselves with. And some politicians and activists want to dismiss all respect for unborn children even in non-abortion contexts, as such respect highlights the denial of reality needed to accept abortion as “health care.”

By allowing parents to sue clinics that lie to them and act negligently, the Alabama ruling should encourage those clinics to reform their protocols on safety and informed consent. More honesty in telling couples about IVF’s risks to embryos, surviving children and mothers would be one welcome change, allowing the couples to make an informed decision whether to pursue IVF or explore alternatives that do not pose those risks. That response to a largely unregulated fertility industry is one that deserves bipartisan support.

Richard Doerflinger is adjunct fellow in bioethics and public policy with the National Catholic Bioethics Center and a fellow at the University of Notre Dame’s de Nicola Center for Ethics and Culture. He lives in Washington state.