Rethinking the Legal and Ethical Relationship Between IVF and Abortion

Abstract: Many were surprised when the Alabama Supreme Court ruled that frozen embryos were “extrauterine children” and a concurring opinion reaching the same result included a Biblical rationale, allowing a wrongful death suit by a couple whose embryos were accidentally destroyed to proceed on February 20, 2024. This paper will offer a brief review of ART and abortion law to argue not only is the Alabama decision a predictable result of the reversal of Roe v Wade, but it may also be an unintended consequence of a longstanding free-rider problem. For years the field of ART has tried to avoid abortion politics (for example, by its lobbyists calling it “the most pro-life area of medicine” to soothe anti-choice utilitarians) while simultaneously relying on abortion precedents for its legal protection. Some contemporary political strategies for “fixing the Alabama problem” are consistent with this distinguishing discourse as well. However, this paper will reject the false dichotomy between one as a life-ending medical practice and the other as a life-creating medical practice. Instead, it will propose an ethical argument for understanding both abortion and IVF as medical interventions that support family preservation, family building, and reproductive freedom and justice that is both conceptually sound and consistent with lived experience. This framing encourages solidarity among physicians, professional societies, and patients who use one or both services during their reproductive lives, to protect access to both.