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A woman holds a sign in support of IVF treatments during a rally advocating for IVF rights outside the Alabama State House, February 28, 2024, in Montgomery, Alabama.
Are miscarriages murder? The idea would have sounded preposterous a few weeks ago, before the Alabama Supreme Court ruled that a mishandled IVF vial is manslaughter. That decision was rooted in the Alabama state constitution’s “fetal personhood” provision that was adopted soon after the Dobbs decision in 2022.
That provision, entitled “Sanctity of Unborn Life,” declared that “it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” On that basis, the court defined a frozen embryo as an unborn child and ruled that the state’s wrongful death statute applied to IVF frozen embryos, even though they were extrauterine.
Immediately after Alabama decision, several IVF clinics in Alabama suspended all IVF treatments out of fear of criminal liability. The decision sparked such public outrage that within two weeks the Alabama legislature passed a bill to shield IVF providers from civil and criminal liability for mishandling frozen embryos. But while the new Alabama law protects health care providers, but it does not protect pregnant people or people seeking to have a baby.
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There is nothing in Alabama law, or in the laws of four other states that have fetal personhood measures, to prevent anti-abortion vigilantes from deciding that every miscarriage is a potential murder that must be investigated to determine whether it could have been caused by a misstep by the pregnant mother. Indeed, in Alabama and elsewhere, there have already been several cases of pregnant women charged with murder for miscarrying on the grounds that they used illegal drugs while pregnant.
And in 2019, a woman in Alabama was indicted for manslaughter after being shot in the stomach while five months pregnant because, police maintained, she had started the fight, and thus put the fetus in harm’s way. One can imagine zealous prosecutors investigating every miscarriage to determine whether the pregnant woman smoked, drove recklessly, or used any drugs at all, even ones prescribed to treat a medical condition, or engaged in any other activity that could potentially harm a fetus.
As someone who had five miscarriages before finally, after many tests, procedures, and an intensely monitored pregnancy, giving birth to a beautiful and thriving baby, I know something about miscarriages. The first thing to know is, they are absolutely devastating. After each of my miscarriages, particularly the two that were in the second trimester, I became deeply depressed.
There is nothing in Alabama law, or in the laws of four other states that have fetal personhood measures, to prevent anti-abortion vigilantes from deciding that every miscarriage is a potential murder.
And the second thing to know is that a woman who miscarries tends to blame herself. In my case, I was gripped with the idea that I had done something wrong. Maybe I should not have taken that airplane flight to go visit my mother in my first few weeks of pregnancy. Maybe I should not have changed the cat litter box that one time, or not had that glass of wine on my wedding anniversary. Maybe I should not have ingested ginger to alleviate my nausea, something I did a few times, not knowing it could be dangerous. I ruminated over every single thing I had done while pregnant, obsessively trying to pinpoint what I did wrong.
Because I was in my mid-thirties at the time, my doctors, thinking they were being sympathetic, said, “it was probably your age.” That felt like another version of it being my fault. My fault for waiting too long to get married and trying to conceive.
The other explanation, commonly expressed, was that a miscarriage is a good thing because the embryo was probably damaged and would not have survived. But this theory was disproved in my case in the one instance when the miscarried embryo was sufficiently intact to be tested and found to be normal.
So, was I to blame? If not me, then who? In my dark post-miscarriage depressions, I constantly repeated to myself the question, “Who killed the baby?”
If these events had happened today in a “fetal personhood” state, could I be criminally charged? Would some law enforcement officer scrutinize the details of my actions while pregnant to see if I had deliberately, or inadvertently, caused the loss?
In my case, a specialist ultimately found that I had an antibody in my blood that was causing the miscarriages—a condition that could be treated with an 80 percent chance of success. Without this diagnosis, I never would have dared to try again, because the psychological toll had become too steep. But if there had been any danger of criminal liability looming over me, I would have hidden my failures and given up much sooner. Is this the world we are headed for, a world like that of The Handmaid’s Tale, in which women who cannot conceive or cannot sustain a pregnancy become social outcasts?
Fetal personhood laws are spreading in the states, and a federal fetal personhood law, called the Life at Conception Act, was introduced last year in the U.S. House of Representatives, with 164 co-sponsors. As evidenced by the recent events in Alabama, these laws not only target people who do not want to have babies, they also add risks of prosecution for people who want to have a baby.
The advances in IVF and other fertility and pregnancy treatments have been some of the greatest scientific achievements of the past century. They have enabled countless women to give birth, and countless couples to form families. But by the verbal trick of labeling every embryo a “person,” the Alabama Supreme Court is threatening to upend childbearing and the possibility of family life for all of us.
The only solutions to this impending travesty are: (1) get the Supreme Court to overturn the Dobbs decision that overturned Roe v. Wade; (2) get state legislatures to protect the right to abortion and reject the fetal personhood notion that nonviable embryos are “persons” under state laws or state constitutions; or (3) elect a Congress that will enact a federal law or constitutional amendment that protects women’s right to reproductive autonomy. The first is probably impossible for the foreseeable future because it would take the retirement and replacement of two of the current conservative justices. The second would be a piecemeal solution that would protect some but not all women and would offer protection that could be reversed at a future time.
The third option promises to be the most enduring, but it will require that Democrats win the House, Senate, and the presidency next November. As women, men, family members, and singles—whether Democrats or Republicans—our work is cut out for us.
