In this Tuesday, Oct. 2, 2018 photo, containers holding frozen...

In this Tuesday, Oct. 2, 2018 photo, containers holding frozen embryos and sperm are stored in liquid nitrogen at a fertility clinic in Fort Myers, Fla. The Alabama Supreme Court ruled, Tuesday, Feb. 20, 2024, that frozen embryos can be considered children under state law, a ruling critics said could have sweeping implications for fertility treatments. The decision was issued in a pair of wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic. Credit: AP/Lynne Sladky

The Supreme Court of Alabama’s ruling that human embryos are children is erroneous and absurd. It has already intimidated fertility specialists in the state to halt efforts at creating babies from embryos. Many may think: “So what? That issue doesn’t impact me.” They are wrong. The decision has grave implications for many areas of medicine. Further, the court declaration that embryos are tiny babies rests on totally flawed, medieval views.

For decades, pro-life zealots have sought to enact legislation at the state and federal levels to declare that human embryos are persons. Now a high court has done what they could not. Other state courts may follow. That will spell big trouble for women.

Some are suggesting the court’s ruling basically bans efforts to use in vitro fertilization to make very-much-wanted babies. That is not quite so. Declaring embryos tiny babies makes IVF less efficient, more costly, and less safe.

If embryos are babies, logic says you cannot kill them. But human reproduction often results in flawed embryos that, post-fertilization, simply pass out of the woman’s body unnoticed. In IVF, it is common to make as many embryos as possible to lower the cost and burden of trying again and again to get pregnant. Declaring embryos to be people means that however many are created, all must be put into a woman’s body, since destruction of flawed or damaged embryos would not be allowed. Lots of implanted embryos means a high risk of multiple simultaneous pregnancies with huge risks to mom and fetuses. IVF will be set back, but this is far from the only damage women will suffer.


Treating embryos as babies will surely be used to try to restrict access to contraception. Many in the anti-abortion movement argue that IUDs and the emergency Plan B pill work by preventing the implantation of a fertilized egg and are thus forms of murder. This despite the fact that experts say these forms of contraception work by preventing fertilization in the first place.

Decisions like Alabama’s will also have major implications for pregnant women. If an embryo is legally considered a tiny person, then child endangerment laws apply. Alabama could say pregnant people must be punished for lack of bed rest, obesity, drinking or smoking. The state could compel a woman to have a cesarean section against her will. If a pregnant woman at any stage of pregnancy has to undergo chemotherapy for cancer treatment, she could be required to wait and first give birth. And no pregnant woman, whether she is aware of her pregnancy or not, would be allowed to use an advanced directive to end her care if she is terminally ill.


Many couples now use preimplantation genetic screening of embryos to avoid having a child with a severely disabling or lethal genetic disease. Destroying ‘diseased’ embryos won’t be allowed in Alabama or any other state that follows this decision. And no woman who is pregnant or even potentially pregnant will be allowed in a clinical trial that might harm an embryo.

The Alabama decision or others declaring embryos babies will restrict medical care for women. That is grossly unethical since the Alabama decision has no basis in science or embryology. None.

The exterior of the Alabama Supreme Court building in Montgomery,...

The exterior of the Alabama Supreme Court building in Montgomery, Ala., is shown Tuesday, Feb. 20, 2024. Credit: AP/Kim Chandler

The majority opinion justifying treating embryos as people went as follows:

“God made every person in His image . . . human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself . . . even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

The court, in invoking the position that embryos bear the “image of God” put forward an erroneous view not seen in science since the 17th century.


Nicolaas Hartsoeker, a Dutch optics manufacturer, was one of the first to use a primitive microscope to look at human sperm cells. What he said he saw in the sperm was a homunculus, a tiny totally preformed human. Men, so the thinking went then, implanted a miniature baby into a woman’s egg. Women were only needed to provide the “soil” for the homunculus to grow. The Alabama Supreme Court is saying that a human embryo is a homunculus.

We now know that at conception a new set of genes is formed from mom and dad’s genes. But, we also know that the new genome is not sufficient to make a fetus or a baby. The mother is key. She must send chemical signals to the embryo implanted in her body to get growth to begin. No signals, no development. The genes just sit there.

We know something else: It is possible to use genes from a cell in a body part and, with the right chemical messages, grow adult animals like Dolly the sheep. Cloning is possible; is Alabama jurisprudence telling us they think every human cell is a tiny baby?

Babyhood does not begin with fertilization. There is no little homunculus in a fertilized egg. A baby only begins with a fertilized egg implanted in a womb where it can get chemical direction and messages from a mom. Embryos are possible babies, or potential babies, but as science now knows, not actual babies.

Bad science makes for bad law. Outmoded theological thinking biased against women puts them at grave risk. Ignoring the science is not something courts or legislators ought to be allowed to do when so much hangs in the balance.


 THIS GUEST ESSAY reflects the views of Arthur Caplan, head of the Division of Medical Ethics at NYU Grossman School of Medicine who has written and lectured on reproductive ethics for more than 40 years.

This guest essay reflects the views of Arthur Caplan, head of medical ethics at NYUGSOM who has written and lectured on reproductive ethics for more than 40 years.

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