Where might this ruling take us in this legal era following the Dobbs decision—an era already marked by uncertainty as if by design? (Some media coverage so far has unfortunately only fed the uncertainty, mistakenly referring to “frozen eggs” rather than “frozen embryos.” Frozen eggs have not been found to be people—at least not yet.) You might think the ramifications are on hold until this case hits the Supreme Court, but that’s unlikely, law professor Mary Ziegler told NPR. Instead, she wrote, “the court’s ruling could set a precedent for other conservative states that embrace the idea of personhood before birth, making it harder to pursue IVF across large swaths of the country.” It would in turn fuel anti-abortion groups’ efforts at having fetal personhood recognized in the Constitution, helping them “make the case that if states already sometimes treat an embryo or fetus as a rights-holder, constitutional law should do the same.” Liberty Counsel, another Christian law project, swiftly added the Alabama Supreme Court decision on embryos to a new filing with the Supreme Court of Florida, hoping it would support their efforts to keep a constitutional amendment recognizing abortion rights off the ballot in the November election.
The ruling leaves open another legal question: If a frozen embryo is a child, and if it may not be destroyed, what outcome does the law permit? One Alabama woman already in IVF treatment said her doctor told her it might be possible to have her remaining embryos moved out of state. The judges who declared concern for “extrauterine children” hand-waved such concerns, going so far as to write that it was not necessary for the court to address “the public-policy implications of treating extrauterine children as human beings.” They seemed more focused on theological matters, claiming that the law recognizes “that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.” Would some other individual be allowed to “adopt” an embryo?
They already are. The practice of embryo adoption already exists, with somewhat formalized adoption programs using “Christian values” to make determinations of who can adopt an embryo, barring queer couples, for example, just as they do for actual children. Christianity Today wondered just a few months ago if embryo adoption might be “the next pro-life frontier.” There is also a name for such adopted embryos circulating among Christian adoption services: “snowflake baby.” One of them, a young woman named Hannah, even filed a brief in the Dobbs case—to the best of the author’s knowledge; the brief read, “the first former frozen embryo person to file an Amicus Curiae Brief as an adult at the United States Supreme Court.” It includes a retelling of her adoption story, used to argue that viability is at conception. In this light, the ultrareligious language of the Alabama ruling feels less surprising. This is where the anti-abortion movement has always been headed. This time, they’re getting what they want before most people have realized what they were after.