Science
'What is this, “The Handmaid’s Tale”?' Exploring moral questions posed by controversial IVF ruling
Is a frozen embryo a child?
The Alabama Supreme Court says yes. In ruling this month that three couples who lost frozen embryos in a storage facility accident could sue for wrongful death of a minor child, the court wrote that the “natural, ordinary, commonly understood meaning” of the word “child” includes an “unborn child” — whether that’s a fetus in a womb or an embryo in a freezer.
Hospitals and clinics across the conservative state have since paused in vitro fertilization services as they scramble to figure out the legal and ethical ramifications of the decision. Transport companies are also on hold as they assess the risks of carrying embryos out of state.
To better understand the ethics of IVF and what this ruling means for clinics, families and the more than a million embryos stored in freezers across the country, we spoke with Vardit Ravitsky, a professor of bioethics at the University of Montreal and president of the Hastings Center, an independent bioethics research institute in New York. The interview has been edited for clarity and length.
You became interested in the ethical issues of IVF as a college student, when a friend asked if you would consider donating an egg.
I was almost 20. I was absolutely fascinated by the notion of carrying a fetus that is not genetically related to you. What does that mean to be the biological mother of a fetus that is genetically not your child? On the flip side, what happens when you give your egg to another woman and you have a genetically related child that is not yours?
The notion of genetic relatedness — IVF kind of broke that. You can now carry a fetus that is not yours; you can give your genetics to another person. That blew my mind, because it took the notion of motherhood that was the same for all of human history and broke it down into two components.
So technology can change our fundamental concept of human beings. And that’s what’s happening here. We’re talking about a batch of cells on ice, and we call it a child. That just wasn’t possible before.
Do people have a common understanding of what an embryo is?
Embryo, fetus and newborn baby are, first and foremost, medical biological terms. An embryo is the name we use in the beginning of the development, up to about 11 weeks pregnancy or nine weeks in embryonic development. Then, when it’s more developed, we call it a fetus. When it breathes on its own, outside of a female body, we call it a baby.
The separate issue is when do we accord these entities moral status? We can call them whatever we want; we can call them cells or we can call them children. That’s a value-based, societal decision.
Do we treat embryos outside of the body morally in the same way that we treat them inside of the body? In most jurisdictions, we treat them differently.
For years, anti-abortion advocates in red states have pushed “fetal personhood” — the idea that life begins at conception and fetuses are children entitled to legal rights. Now Alabama’s Supreme Court has ruled that frozen embryos should be considered children. What ethical questions does this pose?
To imply or say explicitly that [frozen embryos] are children, in the same sense that fetuses are seen as children, to me, that’s a very dangerous development.
Think about it logically: If you have a pregnancy and you do nothing, and there’s no miscarriage, a baby will be born. If you have an embryo in a dish in a freezer and you do nothing, there will not be a baby.
I would like women to have access to abortion because I care about their health and autonomy and their freedom to choose. When it comes to frozen embryos, it has nothing to do with a woman and with her body.
The potential of these embryos to become babies or children depends on so many steps: They have to be thawed, they have to continue to develop, they have to be implanted in the uterus, the uterus has to accept them, pregnancy has to develop. These are all steps that can still go wrong. To think of them as children in the same way that we think about newborns or fetuses is just, to me, going so far in how we understand the concept of a child.
In a concurring opinion, Alabama Chief Justice Tom Parker wrote that the people of the state adopted the “theologically based view” that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.” What does this mean for the future of IVF in conservative states?
Even if you say life begins at conception — for religious reasons or for any other values that you hold — you could still assign different moral values to the two scenarios of conception: outside of the body or inside of the body.
But if you take the view that life starts at conception and you apply that to in vitro, you are potentially shutting down IVF facility care. For clinics, as we’ve already seen beginning to happen, there are risks of handling human embryos that are very fragile biological entities. If the law treats them as children, then clinics rightly freak out about all that could happen to them during fertility treatments.
Unfortunately, accidents happen in clinics: freezers malfunction, embryos get destroyed by accident. Sometimes they have to be tested, and the testing harms them.
Does treating embryos as children necessarily call into question clinics’ ability to provide IVF?
Even if there’s technically the possibility of continuing to provide IVF, under this framework of “embryos are children” … if you’re actually convinced that you’re treating children under the microscope, the risks are so huge that I don’t see how clinics will continue to function long-term.
What ethical and legal dilemmas do clinics face?
What is the extent and the nature of their liability if something happens to an embryo? Is it criminal liability? What part of the law would they be liable for?
Now, in the current reality, couples can agree to the destruction of their embryos, they can donate them for research, they can allow genetic testing of those embryos. If this is a child that deserves independent protection, then what the couple wants becomes irrelevant.
If I owned a fertility clinic, I’d be very scared right now. If you treat embryos seriously as children, you cannot justify any level of risk. You cannot justify using them for training, for research. If we don’t allow genetic testing, we’re slowing down the quality of facility care, entire programs of research that are critical to biomedicine. The ripple effects are huge.
Could clinics be required to maintain all the frozen embryos they have in perpetuity?
Absolutely. If you don’t know what to do with them, other than implant in the uterus and start a pregnancy, then the obvious alternative under this ruling is to keep them frozen indefinitely, which costs hundreds of dollars a year. Currently, if parents abandon their embryos and stop paying the storage fee, clinics can destroy them after five years. But if that’s no longer an option, they will just accumulate and accumulate.
There are over a million frozen embryos in the U.S. today. And that number is growing all the time, because every time a woman undergoes a cycle, most often not all the embryos are used. So every cycle of IVF potentially leaves a few behind in a freezer. For clinics to carry that cost is a significant burden; IVF is already exceptionally expensive.
If a frozen embryo is viewed as a child, could it be interpreted as having a right to be implanted and born?
Absolutely yes. Celine Dion famously said that her frozen embryos in New York are children waiting to be born. You know Sofia Vergara from “Modern Family”? Her ex named their frozen embryos and sued in their name — they were the plaintiffs — that they have a right to be born. He argued he can make that happen because he has created a trust in their name, he has a surrogate, he will father them, he will take responsibility; they will want for nothing. He said leaving them on ice is like murdering them.
The court in Louisiana dismissed the case on a technicality that the embryos were created in California. They didn’t say, “You’re being ridiculous!” So that line of thinking — that frozen embryos have a right to be implanted in order to be born — has already been tried in the U.S., and it wasn’t even refuted fully.
What is this, “The Handmaid’s Tale”? Catch women and impregnate them because [embryos] have a right to be born? Where do we stop?
So what’s the fate of the more than a million embryos stored in freezers?
If state after state adopts this approach, then in those states, you will not be able to discard embryos or donate them for research or literally do anything with them, except seize them for reproduction. Will you be allowed to ship them to another state becomes the big question.
What does this ruling mean for patients in Alabama and other states with fetal personhood laws?
If I were in the middle of a cycle, and my eggs have not been retrieved yet, and I haven’t gone through fertilization, I’d be questioning whether I want to continue in Alabama. Because I wouldn’t know what I would be allowed to do with the embryos. If I had frozen embryos in Alabama, I would definitely look into shipping them to another state.
We have to remember that people going through IVF are very vulnerable. It’s a high-stress situation anyway, without the added layers of complexity and fear. At a medical level, such stress when you’re going through such an intricate process is definitely not in the best interest of patients.
As IVF clinics will shut down and move to other states, we’ll start seeing reproductive tourism within the U.S., just like we’re seeing with abortion. But the ethical problem with that is equity. Poor couples without resources will just not have access to IVF anymore.
It’s been more than 45 years since the world’s first baby conceived by IVF was born in the U.K. What was the significance of that technological development, and what were the key discussions when IVF was developed?
At the time, they were called test-tube babies. That’s a term that we’ve luckily abandoned, because it implied that they’re artificial children. Some people saw the actual methods of fertilizing the egg outside the body as violating the sacred nature of the creation of life. The Catholic Church was and still is against this, because of the method of conception.
The other concern was, “Oh, these children will be stigmatized. They will not be like other children.” Beyond medical risks that we didn’t know about at the time, how will they be viewed by society? Now it’s so normalized. In some countries, 1 in 6 children is born from assisted reproduction.
Do you think this is a real turning point?
If you think globally, Catholic countries have grappled with the status of embryos for years. Germany, for example, does not allow the destruction of embryos, because the embryos are defined as a person in the Constitution. And that’s for the historical reason that they reject any kind of selection associated to life and will do anything to protect the dignity of human life. So this is new to the U.S., but it’s not new in the world.
The shift has been from worrying about the technique, in itself, to worrying about who’s using it: gay couples using it, lesbian couples using it, single people using it with egg or sperm donation.
A married heterosexual couple using it to overcome infertility has become a nonissue. It became just medical care, no moral issues associated, other than: What do you do with your leftover frozen embryos that still remain?
For the last few years, the Marine Mammal Center has been testing any patients with bird-flu-like symptoms, which include respiratory and neurological problems, for the virus.
California lawmakers are taking aim at proposed rules to implement a state law aimed at curbing plastic waste, saying the draft regulations proposed by CalRecycle undermine the letter and intent of the legislation.
In a letter to Gov. Gavin Newsom and two of his top administrators, the lawmakers said CalRecycle exceeded its authority by drafting regulations that don’t abide by the terms set out by the law, Senate Bill 54.
“While we support many changes in the current draft regulations, we have identified several provisions that are inconsistent with the governing statute … and where CalRecycle has exceeded its authority under the law,” the lawmakers wrote in the letter to Newsom, California Environmental Protection agency chief Yana Garcia, and Zoe Heller, director of the state’s Department of Resources Recycling and Recovery, or CalRecycle.
The letter, which was written by Sen. Catherine Blakespear (D-Encinitas) and Sen. Benjamin Allen (D-Santa Monica), was signed by 21 other lawmakers, including Sen. John Laird (D-Santa Cruz) and Assemblymembers Al Muratsuchi (D-Rolling Hills Estates) and Monique Limón (D-Goleta).
CalRecycle submitted informal draft regulations two weeks ago that are designed to implement the law, which was authored by Allen, and signed into law by Newsom in 2022.
The lawmakers’ concerns are directed at the draft regulations’ potential approval of polluting recycling technologies — which the language of the law expressly prohibits — as well as the document’s expansive exemption for products and packaging that fall under the purview of the U.S. Department of Agriculture and the Food and Drug Administration.
The inclusion of such blanket exemptions is “not only contrary to the statute but also risks significantly increasing the program’s costs,” the lawmakers wrote. They said the new regulations allow “producers to unilaterally determine which products are subject to the law, without a requirement or process to back up such a claim.”
Daniel Villaseñor, a spokesman for the governor, said in an email that Newsom “was clear when he asked CalRecycle to restart these regulations that they should work to minimize costs for small businesses and families, and these rules are a step in the right direction …”
At a workshop held at the agency’s headquarters in Sacramento this week, CalRecycle staff responded to similar criticisms, and underscored that these are informal draft regulations, which means they can be changed.
“I know from comments we’ve already been receiving that some of the provisions, as we have written them … don’t quite come across in the way that we intended,” said Karen Kayfetz, chief of CalRecycle’s Product Stewardship branch, adding that she was hopeful “a robust conversation” could help highlight areas where interpretations of the regulations’ language differs from the agency’s intent.
“It was not our intent, of course, to ever go outside of the statute, and so to the extent that it may be interpreted in the language that we’ve provided, that there are provisions that extend beyond … it’s our wish to narrow that back down,” she said.
These new draft regulations are the expedited result of the agency’s attempt to satisfy Newsom’s concerns about the law, which he said could increase costs to California households if not properly implemented.
Newsom rejected the agency’s first attempt at drafting regulations — the result of nearly three years of negotiations by scores of stakeholders, including plastic producers, package developers, agricultural interests, environmental groups, municipalities, recycling companies and waste haulers — and ordered the waste agency to start the process over.
Critics say the new draft regulations cater to industry and could result in even higher costs to both California households, which have seen large increases in their residential waste hauling fees, as well as to the state’s various jurisdictions, which are taxed with cleaning up plastic waste and debris clogging the state’s rivers, highways, beaches and parks.
The law is molded on a series of legislative efforts described as Extended Producer Responsibility laws, which are designed to shift the cost of waste removal and disposal from the state’s jurisdictions and taxpayers to the industries that produce the waste — theoretically incentivizing a circular economy, in which product and packaging producers develop materials that can be reused, recycled or composted.
As promised, federal health officials have dropped longstanding recommendations that healthy children and healthy pregnant women should get the COVID-19 vaccines.
“The COVID-19 vaccine schedule is very clear. The vaccine is not recommended for pregnant women. The vaccine is not recommended for healthy children,” the U.S. Department of Health and Human Services said in a post on X on Friday.
In formal documents, health officials offer “no guidance” on whether pregnant women should get the vaccine, and ask that parents talk with a healthcare provider before getting the vaccine for their children.
The decision was done in a way that is still expected to require insurers to pay for COVID-19 vaccines for children should their parents still want the shots for them.
The new vaccine guidelines were posted to the website of the U.S. Centers for Disease Control and Prevention late Thursday.
The insurance question
It wasn’t immediately clear whether insurers will still be required under federal law to pay for vaccinations for pregnant women.
The Trump administration’s decision came amid criticism from officials at the nation’s leading organizations for pediatricians and obstetricians. Some doctors said there is no new evidence to support removing the recommendation that healthy pregnant women and healthy children should get the COVID vaccine.
“This situation continues to make things unclear and creates confusion for patients, providers and payers,” the American College of Obstetricians and Gynecologists said in a statement Friday.
Earlier in the week, the group’s president, Dr. Steven Fleischman, said the science hasn’t changed, and that the COVID-19 vaccine is safe during pregnancy, and protects both the mom-to-be and their infants after birth.
“It is very clear that COVID-19 infection during pregnancy can be catastrophic,” Fleischman said in a statement.
Dr. Susan Kressly, president of the American Academy of Pediatrics, criticized the recommendation change as being rolled out in a “conflicting, confusing” manner, with “no explanation of the evidence used to reach their conclusions.”
“For many families, the COVID vaccine will remain an important way they protect their child and family from this disease and its complications, including long COVID,” Kressly said in a statement.
Some experts said the Trump administration should have waited to hear recommendations from a committee of doctors and scientists that typically advises the U.S. Centers for Disease Control and Prevention on immunization recommendations, which is set to meet in late June.
California’s view
The California Department of Public Health on Thursday said it supported the longstanding recommendation that “COVID-19 vaccines be available for all persons aged 6 months and older who wish to be vaccinated.”
The changes come as the CDC has faced an exodus of senior leaders and has lacked an acting director. Typically, as was the case during the first Trump administration and in the Biden administration, it is the CDC director who makes final decisions on vaccine recommendations. The CDC director has traditionally accepted the consensus viewpoint of the CDC’s panel of doctors and scientists serving on the Advisory Committee on Immunization Practices.
Even with the longstanding recommendations, vaccination rates were relatively low for children and pregnant women. As of late April, 13% of children, and 14.4% of pregnant women, had received the latest updated COVID-19 vaccine, according to the CDC. About 23% of adults overall received the updated vaccine, as did 27.8% of seniors age 65 and over.
The CDC estimates that since October, there have been 31,000 to 50,000 COVID deaths and between 270,000 and 430,000 COVID hospitalizations.
Here are some key points about the CDC’s decision:
New vaccination guidance for healthy children
Previously, the CDC’s guidance was simple: everyone ages 6 months and up should get an updated COVID vaccination. The most recent version was unveiled in September, and is officially known as the 2024-25 COVID-19 vaccine.
As of Thursday, the CDC, on its pediatric immunization schedule page, says that for healthy children — those age 6 months to 17 years — decisions about COVID vaccination should come from “shared clinical decision-making,” which is “informed by a decision process between the healthcare provider and the patient or parent/guardian.”
“Where the parent presents with a desire for their child to be vaccinated, children 6 months and older may receive COVID-19 vaccination, informed by the clinical judgment of a healthcare provider and personal preference and circumstances,” the CDC says.
The vaccine-skeptic secretary of Health and Human Services, Robert F. Kennedy Jr., contended in a video posted on Tuesday there was a “lack of any clinical data to support the repeat booster strategy in children.”
However, an earlier presentation by CDC staff said that, in general, getting an updated vaccine provides both children and adults additional protection from COVID-related emergency room and urgent care visits.
Dr. Peter Chin-Hong, a UC San Francisco infectious diseases expert, said he would have preferred the CDC retain its broader recommendation that everyone age 6 months and up get the updated vaccine.
“It’s simpler,” Chin-Hong said. He added there’s no new data out there that to him suggests children shouldn’t be getting the updated COVID vaccine.
A guideline that involves “shared decision-making,” Chin-Hong said, “is a very nebulous recommendation, and it doesn’t result in a lot of people getting vaccines.”
Kressly, of the American Academy of Pediatrics, said the shared clinical decision-making model is challenging to implement “because it lacks clear guidance for the conversations between a doctor and a family. Doctors and families need straightforward, evidence-based guidance, not vague, impractical frameworks.”
Some experts had been worried that the CDC would make a decision that would’ve ended the federal requirement that insurers cover the cost of COVID-19 vaccines for children. The out-of-pocket cost for a COVID-19 vaccine can reach around $200.
New vaccine guidance for pregnant women
In its adult immunization schedule for people who have medical conditions, the CDC now says it has “no guidance” on whether pregnant women should get the COVID-19 vaccine.
In his 58-second video on Tuesday, Kennedy did not explain why he thought pregnant women should not be recommended to get vaccinated against COVID-19.
Chin-Hong, of UCSF, called the decision to drop the vaccination recommendation for pregnant women “100%” wrong.
Pregnancy brings with it a relatively compromised immune system. Pregnant women have “a high chance of getting infections, and they get more serious disease — including COVID,” Chin-Hong said.
A pregnant woman getting vaccinated also protects the newborn. “You really need the antibodies in the pregnant person to go across the placenta to protect the newborn,” Chin-Hong said.
It’s especially important, Chin-Hong and others say, because infants under 6 months of age can’t be vaccinated against COVID-19, and they have as high a risk of severe complications as do seniors age 65 and over.
Not the worst-case scenario for vaccine proponents
Earlier in the week, some experts worried the new rules would allow insurers to stop covering the cost of the COVID vaccine for healthy children.
Their worries were sparked by the video message on Tuesday, in which Kennedy said that “the COVID vaccine for healthy children and healthy pregnant women has been removed from the CDC recommended immunization schedule.”
By late Thursday, the CDC came out with its formal decision — the agency dropped the recommendation for healthy children, but still left the shot on the pediatric immunization schedule.
Leaving the COVID-19 vaccine on the immunization schedule “means the vaccine will be covered by insurance” for healthy children, the American Academy of Pediatrics said in a statement.
How pharmacies and insurers are responding
There are some questions that don’t have immediate answers. Will some vaccine providers start requiring doctor’s notes in order for healthy children and healthy pregnant women to get vaccinated? Will it be harder for children and pregnant women to get vaccinated at a pharmacy?
In a statement, CVS Pharmacy said it “follows federal guidance and state law regarding vaccine administration and are monitoring any changes that the government may make regarding vaccine eligibility.” The insurer Aetna, which is owned by CVS, is also monitoring any changes federal officials make to COVID-19 vaccine eligibility “and will evaluate whether coverage adjustments are needed.”
Blue Shield of California said it will not change its practices on covering COVID-19 vaccines.
“Despite the recent federal policy change on COVID-19 vaccinations for healthy children and pregnant women, Blue Shield of California will continue to cover COVID-19 vaccines for all eligible members,” the insurer said in a statement. “The decision on whether to receive a COVID-19 vaccine is between our member and their provider. Blue Shield does not require prior authorization for COVID-19 vaccines.”
Under California law, health plans regulated by the state Department of Managed Health Care must cover COVID-19 vaccines without requiring prior authorization, the agency said Friday. “If consumers access these services from a provider in their health plan’s network, they will not need to pay anything for these services,” the statement said.
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