IVF ruling: When courts skip critical thinking

The Alabama Supreme Court has recently classified frozen embryos as people—or as they put it, “extrauterine children”. In addition to all sorts of consternation and arguments, the decision has presented a large problem for the Republican Party as it shifts into campaign mode ahead of the 2024 presidential election.

The decision, the work of a hard-line Christian judge, is not seen as a net winner of votes. Most of those who would be impressed by citing the Bible in a court ruling are likely to already be under the party's tent, while those who prefer to live in a secular country are unlikely to be convinced to enter that tent. Yet Chief Justice Parker succeeded in his aim.

If you are under any illusion as to what kind of a person the Justice is, you can see his opinions reported variously online:

Alabama lawmakers have since moved to protect IVF treatment in the state. The House (voting with a majority of 94 to 6) and Senate have both passed a measure that intends to provide legal protection to IVF clinics. However, this has followed on the back of Senator Cindy Hyde-Smith rejecting the "Access to Family Building Act" in the US Senate, accusing the bill of being a "vast overreach full of poison pills."

While much ink has been spilled concerning the legal and political ramifications, there are some obvious philosophical problems with the notion that a fertilized egg in a Petri dish can be equated with a human being or child.

Here are some scenarios that should lead you to properly question the idea that embryos and fully-fledged humans have the same value, and perhaps the same rights.

Scenario 1

You are in a burning fertility clinic and you can either save the fifty-year-old janitor who lies unconscious on the floor, or you can save a box with a hundred human embryos (fertilized eggs in Petri dishes) ready for implantation, you only have the time to save one. Do you, or do you not, choose the box and let the janitor die? Would it change your answer if the number of embryos in the box was multiplied by 10? Or by 100?

Scenario 2

Similar to #1, but now you have to actively destroy the box with the human embryos yourself (instead of just passively letting it burn in the fire). Imagine you are carrying the unconscious janitor and the box with the embryos blocks your way, flames are all around you and you can only move forward by kicking the box to the side right into the fire. Would you kick the box into the fire to save the janitor, yes or no?

Scenario 3

Your only way out of the burning fertility clinic is through the parking garage. You have the keys for two of the cars that are parked there—an old company van that has a cooling box with a human embryo ready for implantation in it, and your brand new shiny $250,000 Porsche. You have no special connection to the embryo (i.e., this is not an embryo derived from an in vitro fertilization of one of your wife's eggs, and the two of you have been trying for years to have children without success—it´s just one of many embryos derived from IVF of some egg and sperm donors you don´t know). The company van is further away than your Porsche, and getting to it poses a very small but non-negligible risk of dying (let's say about a 1 in 10,000 chance). Which car do you pick, knowing that the other one will be destroyed by the fire?

If I had the choice of saving a single toddler with its arms outstretched to me asking for help as opposed to a thousand Petri dishes, I know what decision I would make.

Of course, that is not even to start the discussion of what personhood is and how that would really complicate the matter at hand.

What these thought experiments seek to show is that equating an embryo to a human being or a child is fraught with philosophical issues. The obvious point is that there is no like-for-like equivalence. As with many things in philosophy, there is a continuum of change here. From separate egg and sperm to fertilized egg, from embryo to fetus, from birthed baby to infant, from toddler to child, from adolescent to adult, from pensioner to comatose centenarian, there are differences of category that are delineated by somewhat arbitrary lines for reasons of practical value. Human beings love to categorize, but in order to categorize, we need distinct categories. Yet, these categories don't exist out there in the ether. Rather, we have to invent those categories ourselves. And we don't always agree on the demarcation or the criteria for such a line being drawn.

Unfortunately, humans don't particularly like it when there are no clear-cut objective answers for questions that they have or problems that they come across. And so, all too simplistically, we often lump different entities into the same category because grey areas are too complicated, or we don't have time to sit down and philosophize.

But certainty (based on simplicity) doesn't right make.

Part of the reason we have courts is to arbitrate on these difficult matters. But when those courts are filled with people with such strong ideological biases that they cannot think critically, then we arrive at points like this. One could argue that the decision to let theological ideology underwrite jurisprudence is to forsake the application of critical thinking.