Manager to the frozen section, please! by Marjorie Arons Barron

The entry below is being cross posted from Marjorie Arons Barron’s own blog.

I don’t mean to be disrespectful, but I have some questions in the wake of the Alabama Supreme Court ruling that frozen embryos are children. If they are, indeed, children, shouldn’t keeping them in freezers at some -230F or colder be a barbarous form of child abuse? Shouldn’t the parents be prosecuted? Who else along with the parents? The custodians of the buildings where they are stored? All those who have a duty to report under child abuse laws?

If frozen embryos are children, do they have a right to independent counsel? How do they make their wishes known to said legal representative? Who determines what is in the best interest of the child?

I’ve read that sometimes frozen embryos are kept for decades. Would keeping them out of school violate state compulsory education laws? Should they be included in the annual census counts used to determine federal funds allocation and decennial redrawing of legislative districts? If an embryo is kept frozen for 16 years, wouldn’t he/she/it/they/them be eligible for a driver’s license? Or at least a learner’s permit? When they reach voting age, could their parents apply for mail-in ballots in their names? Should not all those “children” have to be named at the time of freezing so elections couldn’t be rigged by having more than one ballot per voter? On the other hand, how to protect the right of any of those embryo children to vote.

These questions, profound though they may be, shouldn’t be allowed to obscure the more dire implications of Associate Justice Jay Mitchell’s ruling that “Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics.” Does that mean that the extra fertilized eggs, set aside because it can take several attempts at implantation to succeed, can’t be stored? Does it mean that the frozen ones can’t be destroyed when no longer needed?

The consenting opinions expressed by the Alabama Supreme Court dripped in scriptural overtones. I concede that the question of when life begins – and that what is “life” when it refers to a person as distinct from an amoeba or a piece of lichen – is an article of faith. I respect others’ rights to hold their religious beliefs. But those theological beliefs should not be constraining legally for the rest of the population who don’t share them.

The uncertainties have already led the University of Alabama at Birmingham health system to suspend its in vitro fertilizations pending clarifications. Will those involved in IVF processes be vulnerable to criminal charges? What happens to the women for whom IVF is the only way they can become pregnant? Will they lose the right to fertilize multiple eggs? Could they even be forced to implant them all, facing a choice of either becoming octo-moms or prisoners? This is horrendous.

We learned from the reversal of Roe v Wade that what may seem unlikely today may become defining norms tomorrow. We know that the U.S. Supreme Court will next consider banning prescriptions for abortion pills like mifepristone, used is more than half of all abortions in the United States. Will the next step be to outlaw contraception? You say it can’t happen here? Look at the Alito decision and Thomas‘ concurring opinion in the Dobbs case. At this point, we’re naive to think that anything is sacrosanct.

The Supreme Court of Alabama is an elective position. All nine of the justices are Republicans. The terms of five of those justices expire at the end of this year. The primary is March 5th. This may not be a microcosm of the country, but it is definitely a portent of something trending in this country, and it’s not something to be taken likely.

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