By Connie Reguli, J.D. – Family Policy Specialist and Activist

Image from FreePix – 2024

In the wake of the Alabama Supreme Court’s recent opinion that frozen embryos are human life and therefore subject to the wrongful death of a minor laws in the state, there has been a stir of political comments, a suspension of IVF (in vitro fertilization) services, and a general nervousness about the future of this reproductive technology.  

As soon as the Alabama decision circulated in national headlines, Tennessee Senator Jack Johnson made an inquiry to Attorney General Jonathan Skrmetti who opined that the destruction of embryos from IVF would not come under the Tennessee abortion ban law that passed in 2019.  Skrmetti said that disposing of a human embryo that has not been transferred to a woman’s uterus is not punishable as a ‘criminal abortion’. 

Skrmetti’s position is consistent with Tennessee case law.  The case of Davis v. Davis reached the highest court in Tennessee in 1992.  The couple had married and had determined to resolve their inability to conceive a child with in vitro fertilization.  The medical procedure successfully produced eight embryos.  Two embryos were implanted in the womb of Mary Sue Davis, but the transplant was not successful.  Six frozen embryos remained when the parties became embroiled in divorce proceedings.  While many divorcing couples fight over retirement accounts and toasters, the Davis’ were conflicted on what to do with the embryos.  Junior Davis (the husband) wanted the embryos destroyed.  Mary Sue wanted to keep the embryos for future implantation or donation to someone else.  The Courts struggled to find the appropriate resolution.  

The Tennessee trial Court ruled that it was in the best interest of the unborn children that they be awarded to Mary Sue.  Junior appealed arguing that it was unconstitutional to force him to become a father.  The Court of Appeals awarded the couple joint custody of the embryos and said that they could be implanted for full development only if both parents agreed.  Mary Sue appealed to the Supreme Court. 

The Tennessee Supreme Court provided an extensive argument, discussing whether the embryos were property or whether their pre-embryo state made them something less than a person.  In fact, the Court said that pre-embryos “lack legal personhood”.  They concluded that the Davis’ lacked a property interest in the embryos, but since they both contributed genetic material, they retained joint decision making authority over the outcome.  In its June 1992 decision, the court decided that Junior’s burden of enduring unwanted parenthood outweighed Mary Sue’s burden of being unable to donate the pre-embryos to another couple.  If there is a dispute between those who contribute gametes to the creation of the embryos, they will be destroyed unless both parties agree to maintain them or dispose of them by giving them away. 

The Alabama Court concluded in its opinion that: 

This Court has long held that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act, 6-5-391, Ala. Code 1975, a statute that allows parents of a deceased child to recover punitive damages for their child’s death. The central question presented is whether the Act contains an unwritten exception to that rule for extrauterine children — that is,unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children,regardless of their location.

The conservative outcry is that the Alabama court opinion is detrimental for persons suffering from infertility and who turn to IVF in hopes of completing the cycle of procreation with the assistance of science.  Alabama legislators are scrambling to find a legislative remedy.  The Alabama Attorney General announced that the State had no intention of prosecuting IVF clinics for the destruction of embryos.  And Eagle Forum agreed that this decision should not limit IVF reproduction. 

A bill already filed in Alabama by Democratic legislators says the fertilized human egg or human embryo outside of a human uterus “under any circumstances” would not be considered “an unborn child, a minor child, a natural person, or any other term that connotes a human being for any purpose under state law.”  Rep. Tim Melson said, “We all know that conception is a big argument that it’s life…I won’t argue that point, but it’s not going to form into a life until it’s put into the uterus.”

This battle is a slippery slope whose unintended consequences are vast.  Knee-jerk reactions by state legislators without a policy position are bound to set up a supply of human fetal tissue to the dark side.  

Project Veritas produced an expose on the fetal tissue industry in 2015 showing undercover videos discussing the transactions of aborted body parts.  His production was attacked by liberal media who relied on Planned Parenthood remarks to discredit the report.  

Flashback to April 2016 when the House Select Investigative Panel on Infant Lives held a hearing on “The Pricing of Fetal Tissue”.  Three former U.S. prosecutors on the panel testified that there was sufficient evidence to launch a federal grand jury investigation based on the exhibits provided.

By 2017, the Department of Justice initiated an investigation into the sale and transfer of fetal body parts.  In 2019, the NIH (National Institutes of Health) published an article on the importance of providing fetal tissue to science. The article said that the Trump administration has effectively banned government-funded research on fetal tissue. The article goes on to describe in detail various biomedical experiments that depend on fetal cells.  By 2021, another Congressman called for an investigation.  It remains an unresolved problem.  

Since the reversal of Roe v. Wade in 2022, twenty-one states have bans on abortions.  Liberal media claims that abortion rates continue to rise, but the Center for Disease Control (CDC) statistics stop in 2021.  

IVF is another source of fetal tissue full stop.  If the medical magic of IVF creates eight embryos and only one is permitted to reach “personhood” by full gestation, the lab is left with seven embryos of human tissue.  IVF is rarely a case in which a single embryo is transplanted into the intended mother. After multiple embryos are transferred and begin to grow,  fetal reduction surgery is used to rip growing embryos from the womb, just another variety of abortion. 

If Alabama passes a law that states that the embryo is not human, the participants in IVF and clinics will have free reign to sell tissue or even incubate the embryos in artificial wombs for market distribution as babies for sale or as valuable research tissue.  

So state legislatures are faced with the dilemma of protecting living tissue versus harboring embryos as property which can be bargained to the highest bidder.  They must either police the destruction of tissue that they deem as “non-human” or they must control the production of the living tissue in the first place.  

Conservatives must be preemptive and acknowledge that voluntary participation in reproductive science with the purpose of producing a living organism is procreation.  It is no different from sexual intercourse.  Those who participate in procreation have a duty of care to what they create.  There is no viable option for controlling the disposition of embryos.  If we let this proverbial cat out-of-the-bag it will be decades before we acknowledge the damage.  We should revisit the 1940’s invasion into the body of Henrietta Lacks for scientific research. It is still debated. 

Our Tennessee legislators must take a stand for public policy that promotes conservative values and craft a careful remedy.   

Connie Reguli, J.D. has a law degree and worked the trenches of the legal landmines in Tennessee for three decades traveling for half of Tennessee’s 95 counties.  She has worked over 40 appeals in the state courts; she is responsible for two significant Tenn. Sup. Ct. developments, and she has carved out civil rights for families and children in the Sixth Circuit.  Her area of emphasis is the integrity of the family unit, the perverted federal funding behind programs that affect the family, and abolishing the current child welfare system.  She wears the battle scars from fighting for liberties in the Tennessee courts, but wants to share her knowledge and analysis with other God-fearing conservatives.  She can be found on Facebook, TikTok, Instagram, X, and YouTube.  

More articles 

https://abcnews.go.com/amp/US/wireStory/alabama-ivf-ruling-puts-spotlight-state-plans-tax-107512073

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