What is an embryo?

April 28th, 2024
Tuscaloosa, AL

Today, I’m writing about probably one of the most important questions for lawmakers and law-shakers^[1] right now: what is an embryo? Answer that — as a lawmaker or a law-shaker — and we can find out what kind of healthcare reality you want.

Earlier this year, the Alabama Supreme Court^[2]: answered that question when they wrote an opinion over a case that declared embryos — frozen ones at that — children, extrauterine, readers may recall.

At the Mobile Infirmary Medical Center, allegedly, an incident occurred that would eventually thrust this question to the media table and into the discourse. Here’s what happened to the embryos (again, allegedly):

The plaintiffs allege that the Center was obligated to keep the cryogenic nursery secured and monitored at all times. But, in December 2020, a patient at the Hospital managed to wander into the Center's fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. 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, killing them.

The plaintiffs at the center of the case are a couple who have had children through IVF; live children, out in the world. Reporting knows little behind their beliefs or motivations for pursuing this case.

We do know they sought payment, or relief for their destroyed embryos. Fair enough. If an institution — like a hospital — breaks my stuff, especially something I paid thousands of dollars to make, and hundreds of dollars to store, I’d want repayment, compensation, too.

When they couldn’t get what they sought, the couple went through the courts and pursued a wrongful death argument. This pushed the idea that the embryos were indeed a child that had died when the “wandering patient” grabbed the embryos in their extremely cold containers and dropped them.

The case was first thrown out at a local circuit court, but then appealed to the Supreme Court. Then the conservative judges deemed frozen embryos children and called the destruction of the couple’s embryos a “wrongful death.” This ignited a firestorm of headlines and coverage around IVF. The case is not settled, and it’s unknown what will happen next.

For the hospital system that held those frozen embryos, though, they know what’s next. Earlier this month, the Mobile Infirmary Medical Center will no longer be providing care at the end of this year, as reported by the New York Times (and many other outlets.) A spokesperson told the reporter: “pending litigation and the lack of clarity of the recently passed I.V.F. legislation in the state of Alabama.”

This gives me pause. This is what can happen when power structures, lawmakers, law-shakers, businessmen (and it’s usually men), lobbyists, call an embryo a child; and even further a frozen embryo, a child.

Laws and policies are extensions of power structure’s beliefs, and when there is a law, or enough legal pressure and uncertainty, you shape behavior, and when an embryo is a child, that has all types of implications.

A frozen embryo is usually frozen at five-days after fertilization. They are microscopic — a low amount of cells. There are around five hundred clinics (almost all of them private) that offer fertility care, with probably several hundred thousands (potentially a million) embryos stored in facilities and hospitals across the nation. These services are privately owned, and cost patients tens-of-thousands of dollars to create — and hundreds each year to store them in facilities.

Imagine if power structures started thinking all those frozen embryos were given the same rights as a person?^[3] And imagine every time someone was pregnant, those embryos were deemed people, too?

Via the CDC, roughly of all those embryos and embryos created with assisted fertility care, approximately 2.3% of children are born using Assisted Reproductive Technology (ART). That’s roughly a bit over 7 million people within the US. (For the locals, about .6% of Alabama babies were born in 2021 with ART. Or about 30,000 people — children, out, breathing and crying, and living in the world — not a packet of cells.)

It seems many states and their citizens are in a wrestling match to try and answer the question, what is an embryo? I’d also, by extension and connection, make this about abortion. I’d advocate to make it about reproductive care in general. For if you have an abortion electively or out of necessity, this is about how you view an embryo, a fetus, a pregnancy at least in the 12 week range, if not later, as many abortion advocates call for.

It’s not hard to see all the lawmakers and law-shakers trying to formulate laws that fit their answer to the question: Arizona and Florida’s Supreme Court put recent abortion bans within the state. (Florida’s 6-week ban goes into affect this week.)

In Georgia, thanks to the Life Act and the Dobbs decision, “A pregnant woman can now declare a fetus with a detectable heartbeat a dependent on her state tax form, drive alone in the carpool lane on the motorway and demand child-support payments from the father of her unborn baby.” The quote is from The Economist.

The case out of Idaho which the US Supreme Court recently examined, could enable rights for fetal personhood — and make it illegal to perform abortions in emergency situations. This makes an embryo a person, and legitimizes fetal personhood — life begins when sperm fertilizes the egg. Whether that is in or out of the womb. If Idaho wins this case, it will have many deep ripples across several states; likely impacting women of color most intensely.

But there are plenty of resisters and shakers the other way, too. In Arkansas, the Arkansans for Limited Government is advocating for an amendment to Arkansas’s abortion ban that would make abortion legal up to 18 weeks of pregnancy, and allow abortion in cases of rape, incest, fatal fetal anomaly to protect the health of the pregnant person, which with the current law in that state, is not the case.

Now, the interesting and, I’d argue, good thing about living in these United States is you can have any answer to the question — what is an embryo — that you want. You, yourself, won’t be punished for having that view. Take for example, the person featured in [Christianity Today:]

Strege, 24, was conceived through in vitro fertilization (IVF) in 1996 and frozen for two years. In 1997, she and 19 of her siblings were adopted in embryo form by John and Marlene Strege. They were shipped by FedEx to a local fertility clinic. Hannah was the only embryo to survive thawing and to successfully implant in Marlene’s uterus. She was born in December 1998.

Or consider the hard stance of the “abortion abolitionist” movement growing in Oklahoma, and in other corners of the US and online that equate abortion to murder — embryos and fetuses are people and patients (women) should be punished if something happens to those embryos and fetuses.

Groups can believe that, but that doesn’t mean it should be a law. I don’t support those views, and find them vile, but they — the views — exist and will exist.

Even when these views give laws gas and get passed, people still seek the care they need. Since Dobbs, abortions actually increased in 2023. See HERE and HERE. This is the opposite of what the anti-abortion movement and advocates wanted, I imagine.

To call an embryo a person is to take away rights of women and individuals. To call an embryo a person is to take away important decisions around their body and health. When it comes to IVF and assisted reproductive technology, everyone should have the decision to make the best healthcare choice for them. Every person should have the right — if they are able — to spend thousands of dollars to use a scientific procedure to create a family. Then spend hundreds of dollars to maintain their embryos, upping the chance for building a family. And when they, the people who elected to make embryos in a lab, decide to move on, they should be able to let those embryos be donated to help train people who can then help other people make families, or have a shot at it anyways.

And if you think children are frozen as a 5-day old cell cluster, so be it. If those are your embryos, you can call them children, but that doesn’t mean it needs to be a law that alters another person’s decision and life and health.

For those against fetal personhood, there is good news. It appears every time Abortion rights are on the ballot, Abortion advocates win. This is probably because much of America would call an embryo an embryo, and not a child. According to a Gallup poll, much of America thinks first trimester abortions should be legal.

What is an embryo? It’s not a person. It’s an embryo. As someone actively in IVF care, I am biased, but I think it applies to how we treat pregnant people and how we value what people are allowed to do with their bodies. Those with power, I would advocate for what my spouse, Megan Legerski, told the New York Times, “We have three embryos. We don’t have three children.”

Indeed, we have frozen embryos not frozen children. We want children, but we don’t have them, yet. And that’s how I hope we can shape our laws.

To keep up with this question and many related, see the 19th. Join their newsletters, follow their coverage.

ENDIT.

Other stuff you all should check out:

An excellent meditation on X-Man Magneto that touches on Jewish identity, character creation, and how to live in a broken world. It’s damn good. From Defector:

If to be a Jew of the diaspora is to be, in the Kirby/Lee/Claremont formulation, a mutant, then this is what we must remember. We are not immune to hatred and fear, and we are not the only ones subject to it. And we cannot be safe until we create that better world for everyone, together. It’s a hard road to such a world, and haunted. It might, perhaps, be an impossible one. The judgment of Magneto is that all of us have to walk it anyway.

NYT dropped a new podcast called, simply “The Interview.” Their opener is with actress Anne Hathaway. I feel this interview addresses the question: what do we want from the high-profile guest when we interview them? Why does it matter? And what can we expect? It also gently reminds a listener that the famous name is a person, and everything they say gets NASCAR-ed across the media landscape. Don’t come to extract, come to learn — have a conversation. Come for that and stay for Hathaway’s insights (e.g. “Like I said, I’m more grateful. I’m more settled in myself. I’m less afraid of things not happening. You know, the time in which I was an emerging adult was a different time. We weren’t having the types of conversations that we were having now.”) Listen wherever you stream your podcasts.

Check out 2011’s poetry book Radial Symmetry by Katherine Larson. Hat tip to Erica Hussey who suggested this book. It brought a feast of warmth to my mind.

P.S. Oh, and listen to Maggie Rodgers who dropped a new album this month. Below is the "Don't forget me" single. It feels like a song for between spring and summer. It will warm your heart and leave your ears whorling for more.