By Grace Howard, author of The Pregnancy Police: Conceiving Crime, Arresting Personhood

When I say that the Alabama Supreme Court ruled that fertilized eggs, embryos, and fetuses are legal persons, many people may assume I’m talking about the recent opinion that stated embryos created in the course of in vitro fertilization are “extrauterine children.” Yet this ruling actually happened over a decade ago – and it’s one you might have missed. 

As a scholar of fetal personhood in law, and of the criminalization of pregnancy, I have witnessed the expansion of fetal personhood ideology in law for years. 

The difference, this time, isn’t the law. It’s the rightful and justified public outrage. 

The February 16 decision in LePage v. Center for Reproductive Medicine determined that the embryos made, but not implanted, in the course of IVF treatment were “extrauterine children,” and that the standard practice of discarding excess embryos created via IVF violated the state’s “Wrongful Death of a Minor” law. The opinion led to the temporary cessation of IVF treatment at three major medical centers in the state. Responding to public outrage, Alabama passed a bill in March extending criminal and civil immunity to IVF clinics. But healthcare providers have explained the law does not go far enough since embryos are still considered legal persons.

This dramatic imposition of the ideology of fetal —or rather, embryonic— personhood in Alabama began years ago.

In January 2013, the Alabama Supreme Court ruled that people at any stage of pregnancy who use or ingest a substance that could potentially harm a fertilized egg, embryo or fetus have committed the crime of Chemical Endangerment of a Minor, a felony.  

The 2006 Chemical Endangerment law was originally introduced to address concerns about the presence of children in home meth labs. According to this law, adults who are found to have exposed children to an environment where drugs are made or used is guilty of child abuse. 

Though the law said nothing about pregnancy, or about fertilized eggs, embryos or fetuses, prosecutors around the state started using the Chemical Endangerment law against pregnant people who tested positive for drugs. Hundreds of people were arrested after their healthcare providers reported their patients on the basis that they were abusing their own pregnancies.

When two women appealed their convictions in ex parte Ankrom, the court argued that the chemical endangerment law applied to uterine environments and at every stage of pregnancy. It could also be applied to legal substances that are potentially harmful for developing pregnancies—a seemingly infinite list ranging from coffee to deli meat and beyond. 

In my forthcoming book, The Pregnancy Police: Conceiving Crime, Arresting Personhood, I present my analysis of the 748 Alabama arrest cases, and hundreds of others from around the country. Most of the people who are being targeted for punishment are impoverished, and they are disproportionately women of color. Some are serving decades-long prison sentences in one of the most notoriously violent prisons in the United States, all in the name of protecting fertilized eggs, embryos and fetuses. 

As a scholar of reproductive justice and an expert in the criminalization of pregnancy, I cannot overemphasize the dangers of this kind of “protection.” Laws meant to protect pregnant people from violence have ultimately opened the door to punishing pregnant women and reducing their legal rights. 

IVF is already an incredibly costly procedure that is not always covered by health insurance and is inaccessible for many. Most IVF patients undergo multiple cycles. Among those for whom IVF was successful, it took an average of 3.6 cycles. Each cycle may result in the creation of multiple embryos, some of which may never be used. These embryos will be stored and frozen for future use, or they will be destroyed. The Alabama Supreme Court takes issue with that reality. Now, Alabamians seeking IVF treatment will be forced to either travel over state lines for care, or to only create one embryo per IVF cycle. Neither are great options.

Though the outrage today is certainly warranted, I can’t help but consider the reasons why it was largely absent back in 2013. While most people who can access IVF have financial resources, most people charged with crimes against their own pregnancies do not. A disproportionate number of the people who can access IVF are white, and a disproportionate number of the people charged with crimes against their own pregnancies are not. 

While people who can access IVF are seen as trying, perhaps desperately, to create life, people charged with crimes against their own pregnancies are seen as irresponsible and destructive. Do so many people care today because they see those wanting IVF as deserving of care, and those sitting in prisons, jails and drug courts as deserving of scorn?

When fertilized eggs, embryos, and fetuses are people, nobody with the capacity for pregnancy can come out unscathed. The 2013 Ankrom decision is cited 8 times in LePage. Not merely ideologically related, the LePage case literally rests upon the precedent set in Ankrom, a case that so many people never knew about. 

I wonder, when will we finally learn that our fates are bound together and that respectability will not protect us?