Martins’ IVF Response Robs Embryos Of Their Humanity

As New York Families recently noted, the Supreme Court of Alabama sparked controversy across the nation with its February 16 decision in LePage v. Center for Reproductive Medicine. In LePage, the court ruled that Alabama’s Wrongful Death of a Minor Act recognized frozen embryos as children; therefore, the court held that the death of a frozen embryo could give rise to a wrongful death lawsuit for money damages. The LePage decision has had major implications for clinics that practice in vitro fertilization (IVF) in Alabama.

It is important to understand that the LePage decision did not ban in vitro fertilization or any other fertility treatment. However, in response to the LePage decision, multiple fertility clinics in Alabama suspended their operations due to concerns about possible lawsuits. Fertility clinics routinely make multiple embryos for couples experiencing fertility problems. Some of these embryos are implanted into women’s wombs; however, others are frozen for possible later use, donated for research purposes, or simply discarded if they are deemed to be of poor quality. Alabama’s fertility clinics are understandably concerned that these practices could subject them to liability under the LePage decision.

American’s two major political parties have reacted to the LePage decision in ways that are sadly predictable. The Democratic Party has been a staunch ally of the abortion industry for decades. Of the 48 Democrats serving in the U.S. Senate and the 213 Democrats serving in the U.S. House of Representatives, only one—Rep. Henry Cuellar of Texas—could be described as pro-life. Because of their misguided zeal for abortion, elected Democrats strongly oppose legislative, executive, and judicial actions that would accord any legal rights or protections to fetuses or embryos. Furthermore, the Democratic Party often uses issues relating to reproduction against Republican politicians; one of the Party’s favorite political tactics involves portraying pro-life male Republicans as anti-woman. Thus, it is no surprise that the Democratic Party has expressed outrage at the LePage decision and is already using it to attack Republican candidates. New York State Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers)—a driving force behind the 2019 passage of the Reproductive Health Act, New York’s late-term abortion expansion law—said that Democrats were “‘horrified’” by the LePage decision. Using exaggerations and outright dishonesty, Leader Stewart-Cousins called the decision “‘a direct attack on the autonomy of families and individuals across the nation’” and “‘a draconian [measure] that [threatens] the lives and liberties of people’”; she added, “‘we will do everything in our power to ensure that the horrors unfolding in Alabama and elsewhere under Republican control do not find their way here.’”

While elected Republicans are generally pro-life, the Republican Party’s response to LePage has been problematic as well. As we noted in our previous commentary on LePage, many Republicans have responded to LePage by taking steps to affirm their support for IVF. In so doing, some of those Republicans have refused to acknowledge the humanity of the embryos at the center of IVF and related fertility procedures. Unfortunately, one such Republican is New York State Sen. Jack Martins (R-Old Westbury). On February 28, Sen. Martins introduced Bill S.8682-Martins/A.9412-Curran. The Martins bill includes the following language: “Any fertilized human ovum or human embryo that exists in any form outside of the uterus of a human body shall not, under any circumstances, be considered an unborn child, a minor child, a natural person, or any other term that connotes a human being for any purpose under the laws of this state.” In the sponsor memorandum accompanying the bill, Sen. Martins made the following claims: “The Alabama ruling is a potential threat for those who desire to have children everywhere. New York should send a clear, strong message, that it will protect the right for countless families to participate in the joys of parenthood. IVF and other similar fertility treatments are a blessing for so many families and it is critical that New York ensure they remain accessible for them.”

The first problem with the Martins bill is the legal analysis behind it. Oddly, Sen. Martins told the Albany Times Union that he had found nothing in New York’s laws that would prevent a decision like LePage from being made here in the Empire State. In fact, the New York Court of Appeals has ruled that New York’s wrongful death statute does not allow claims arising from the deaths of unborn children. See Endresz v. Friedberg, 24 N.Y.2d 478 (1969). The Endresz decision was rendered back in 1969. Nothing has happened since then that would make it more likely for New York courts to confer legal protections upon human embryos. Abortion was legalized in New York in 1970, and in recent years, New York government has done nearly everything within its power to make abortion available at all stages of pregnancy. Unfortunately, embryos—whether frozen or otherwise—are accorded no legal rights in New York. The idea that a decision like LePage could come out of the New York court system is simply unfathomable.

The second—and much larger—problem with the Martins bill is its rank dishonesty. What is Sen. Martins arguing here? That a human embryo is not human, or that it is not alive? Scientifically speaking, human life begins at conception. The only question for policymakers is whether they have the courage and compassion to recognize that life, call it for what it is, and protect it under the law.

According to the Times Union, Planned Parenthood issued a statement calling the Martins bill “‘political theater’” and describing it as an effort to distance Sen. Martins from pro-life efforts by Republicans in other states. At New York Families, we don’t agree with Planned Parenthood very often. This time, however, they might be right.

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