April 18, 2024
Background
In an egregious decision, attempting to enshrine a narrow interpretation of Christian belief into American law, the Alabama Supreme Court in 2024 declared embryos created via in vitro fertilization and stored in a medical facility to be “persons” under the law in a case claiming “wrongful death.” This decision not only violates the First Amendment to the United States Constitution, which guarantees freedom of religion, but also decimates a person’s ability, along with their doctor, to make the very personal decision to attempt intervention of reproductive endocrinology in order to have children. The Central Conference of American Rabbis (CCAR) opposes this decision as a barrier to both personal choice in reproductive matters and to the accessibility of an important path to parenthood for those who choose it. Endowing embryos with the legal status of personhood is yet another attempt to curb reproductive rights and sexual autonomy.
The Alabama case that sparked consideration of this current resolution alarms us as Reform rabbis, precisely because it threatens access to fertility treatments and harms those seeking to fulfill the mitzvah of p’ru ur’vu, be fruitful and multiply. The Judge granted a ruling of “wrongful death of a minor” in a situation where existing American legal precedents might have better indicated a ruling of “breach of contract.”[1]
Jewish tradition does not treat human life flippantly and has always sought to balance a major concern for the life and health of a pregnant person with the changes and development that occur between conception and birth. Our rabbinic forebears were no strangers to the notion of competing obligations and values. The sages carefully considered the need to balance pikuach nefesh, the preservation of life, especially in the case of a pregnant person, with both the uniqueness of potential life and the obligation of p’ru ur’vu, “be fruitful and multiply.” As the CCAR has recently asserted, “[o]ur Talmudic sages understood that an embryo had the potential to grow into a person and also held the potential of not developing.”[2] People undergoing fertility treatments, including the arduous and often expensive process of in vitro fertilization, know this truth agonizingly well.
Many factors motivate people to seek such treatments. The matter is of particular, but by no means exclusive, concern to hopeful parents who identify as LGBTQ+. As rabbis who provide pastoral care to people in complex medical situations, we are well acquainted with the heartbreak that sometimes leads to seeking out and undergoing fertility treatments. Our understanding and compassion for people in this situation is informed by the powerful emotions surrounding childbearing in the Hebrew Bible, as when Rachel says to Jacob, “Give me children or I shall die!” (Genesis 30:1). With each treatment and with each menstrual cycle, people risk having their hopes of becoming parents dashed; to treat embryos as “legal persons” does nothing to alleviate this risk or its attendant suffering.
Worse, the consequences of the Alabama Supreme Court’s February 2024 decision have already proved devastating for both patients seeking to receive fertility treatment and their medical care providers. Dr. Mamie McLean of Alabama Fertility Specialists called the ruling “truly a nightmare,” adding, “There is no question fewer babies will be born because of this ruling.”[3] Conflating embryos, particularly embryos created and stored outside a human womb, with “persons” effectively imposes one narrow religious view on all those who seek fertility treatment in states where such a definition rules. It privileges the religious restrictions of one faith over the positive guidelines of others, including Judaism. Were this to become a trend, it could threaten reproductive and sexual health treatments of many kinds; as fertility professional Dr. Lora Shahine wonders, “If embryos are children… Is it harmful to freeze them? Biopsy them? Is an embryologist responsible if an embryo doesn’t survive a thaw? Is a doctor or patient responsible if an embryo doesn’t implant?”[4]
Further, this case presents religiously coded language in ways that violate the First Amendment rights of Jews and other folks whose religion, if they have one, differs from that of the judges in the case. In a concurring opinion, for example, Chief Justice Tom Parker explicitly argues that his is a religious and a so-called “moral” decision, not a legal one, citing Christian theologians and arguing that “even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his [sic] glory.”[5]
The Reform Movement has long supported fertility treatments, including both the creation and the necessary destruction of embryos via in vitro fertilization; for example, in a 1999 Responsum, “In Vitro Fertilization and the Status of the Embryo,” our colleagues found that “[a] human embryo or zygote is, like the fetus, a potential but not a legal person, and there is no explicit Jewish legal prohibition against its destruction.”[6] The Rabbis of the Talmud distinguish between a fetus in the womb and one in the process of being born; all the more so, modern halachists (scholars of Jewish law) argue that an embryo outside the womb cannot be considered a “fetus,” and therefore possesses a lesser legal status. For example, while it is permitted to violate the laws of Shabbat in order to save the life (pikuach nefesh) of a pregnant person, the Talmud sees the life of a fetus as “in doubt.”[7] Contemporary halachists rule that one may not violate Shabbat to save an embryo that has not yet implanted in the uterus.[8]
No one seeking to become a parent through fertility treatments should suffer the wanton and nonconsensual destruction of embryos created from their own or their agents’ biological materials. It is these vulnerable people, including queer folks who cannot otherwise pursue their desire to become biological parents, who will be harmed if other judges and lawmakers follow this dangerous case. However, to claim that the destruction of an embryo amounts to the destruction of a legal person only serves to limit reproductive and sexual autonomy and ultimately to limit successful fertility treatments.[9]
Reform rabbis have approached IVF and other reproductive technologies as welcome aids to those struggling with infertility who want to become parents. We view reproductive endocrinological intervention to treat infertility as a “legitimate medical therapy, offering realistic hope to many who seek to build families.” Furthermore, we permit the discarding of unused embryos that occurs through the process, both because Jewish law does not grant legal personhood until birth, and because any requirement to preserve zygotes or embryos indefinitely places such an undue burden that it would effectively render many fertility treatments impossible.[10]
Therefore, the Central Conference of American Rabbis calls on its members to:
- Demand that individuals in the United States be permitted to make their own choices regarding in vitro fertilization and other reproductive technologies;
- Wherever possible, support the employees of institutions we serve who seek fertility treatment; for example, with lenient medical leave policies to allow for frequent treatments;
- Offer pastoral support to those who are impacted by this ruling;
- Teach traditional and contemporary Jewish legal approaches to abortion and the status of embryos and fetuses.
- Contact our elected officials to object this and similar decisions or policies, and work to pass legislation affirming that frozen embryos are not legal persons; and
- Advocate that the United States Supreme Court overturn the Alabama Supreme Court’s decision in Le Page v. Center for Reproductive Medicine, P.C.
- Riese, “Alabama’s Anti-IVF Ruling Quotes God To Conclude Embryos Are People […],” February 24, 2024, https://www.autostraddle.com/alabama-ivf-ruling-embryos-are-people/. ↑
- Rabbi Erica Asch, President, and Rabbi Hara Person, Chief Executive, “Central Conference of American Rabbis Condemns Alabama Supreme Court Ruling on the Status of Embryos,” 26 February, 2024. https://www.ccarnet.org/central-conference-of-american-rabbis-condemns-alabama-supreme-court-ruling-on-the-status-of-embryos/. ↑
- Dr. Mamie McLean, Op-Ed: “Alabama Supreme Court ruling ‘truly a nightmare’ for doctors and patients,” https://www.al.com/opinion/2024/02/guest-opinion-alabama-supreme-court-ruling-truly-a-nightmare-for-doctors-and-patients.html. ↑
- Dr Lora Shahine Instagram ↑
- Le Page v. Center for Reproductive Medicine, P.C., Supreme Court of Alabama, February 16, 2024, https://law.justia.com/cases/alabama/supreme-court/2024/sc-2022-0579.html. ↑
- Central Conference of American Rabbis, Responsa Committee, “In Vitro fertilization and the Status of the Embryo,” 1997: https://www.ccarnet.org/ccar-responsa/rr21-no-5757-2/. ↑
- Babylonian Talmud, Yoma 85b. ↑
- See also ibid. and CCAR Responsa Committee, “Human Stem Cell Research,” 2001: https://www.ccarnet.org/ccar-responsa/nyp-no-5761-7/. ↑
- We are reminded that laws seeking to limit abortion and define life as at conception (even if that conception be outside of the womb) harm not only those who seek to end a pregnancy, but harm those who seek to have healthy pregnancies. See CCAR and WRN Resolution Affirming Commitment to Broad, Accessible Reproductive and Sexual Health Care ↑
- Ibid. ↑