Will IVF really be the next frontier in America’s culture wars? 

Moral inconsistency is a pretty normal part of the human condition. Attitudes to in-vitro fertilisation (IVF) are a case in point. While the vast majority of Americans support access to the technology, which now accounts for over 90,000 births per year, many struggle with a key component of it: the destruction of embryos in the process. Indeed, whereas 82% of Americans believe IVF is morally acceptable, only 49% say the same about destroying excess embryos, according to recent polling by Gallup. This presents moral purists with a conundrum.

So far, Americans have mostly been able to hold such competing views. Even among those who believe that an embryo is a person with rights, only about one in ten say access to IVF is a “bad thing”, according to Pew Research Centre. Yet state courts, state legislatures and pressure from the Christian right are making the contradiction harder to sustain. In February Alabama’s Supreme Court ruled that embryos created through IVF counted as children under state law, causing the temporary closure of fertility clinics. In June the Southern Baptist Convention, which represents 13m Christian evangelicals, overwhelmingly voted to oppose IVF as currently practised, calling it “dehumanising”, and calling on the government to curtail it.

Meanwhile Democrats have been calling out Republican hypocrisy, pointing out that many lawmakers who claimed to support IVF had supported the fetal-personhood bills that—by giving embryos human rights—threaten IVF. In June Senate Democrats dared Republicans to block a Right to Contraception Act and, a week later, a Right to IVF Act (all but two Republicans voted against, calling them unnecessary “show votes”). The Biden campaign has a new ad in which the president warns that “they’re coming for IVF and birth control next”. Republicans dismiss the accusations as fear-mongering. They have a point. No sane Republican up for re-election will pledge to ban IVF.

But the Alabama judgment showed how pro-life judges, state Supreme Courts or legislatures could in effect ban IVF (in Alabama it is safeguarded only thanks to a stopgap law). All it would take is another court case brought by a wronged party, in a state with a fetal-personhood bill—which one in three states have—and a sympathetic judge. In April the majority of Florida’s Supreme Court suggested “pre-born children” are “persons” entitled to a right to life under the state’s constitution. Texas’s Supreme Court recently declined to hear a case between a divorcing couple arguing over whether frozen embryos were property or children. Had they taken it up, it could have had similar effects to the Alabama case.

The most realistic threat, though, is that IVF will become harder to get in some conservative states. This is what happened with abortion after Roe, with extra hurdles—like burdensome regulations about corridor widths in clinics, mandatory waiting times and ultrasounds. Louisiana already prohibits the destruction of embryos; patients have to pay to transport them to out-of-state clinics. Barbara Collura, from Resolve, an infertility patient organisation, predicts that “it will take the form of things like regulating how many embryos can be created, maybe even regulating if embryos can be frozen”, or genetically tested. Although she does not expect a total ban, she is “very confident that we’re going to see those kinds of attempts, probably beginning at the state level”.

Americans are far from alone in having complex feelings about embryos. In Germany, embryos have a particular status which falls short of “personhood” but is more than just gametes, a legacy of the Nuremberg trials. Several countries prohibit genetic testing or donation of embryos. Most European countries prohibit selecting embryos based on sex, though America allows it. Yet whereas most other countries allow for moral flexibility, whereby politicians can be anti-abortion but pro-IVF, or pro-IVF but uncomfortable with embryo destruction, in America cultural wars around reproductive rights leave less room for such elasticity.■