Lost in the torrent of stories about in vitro fertilization, embryos, personhood, and those currently pursuing or considering IVF is the reality of those behind the recent Alabama ruling that determined frozen embryos are children and those who destroy them can be held legally responsible. It began as a wrongful death lawsuit brought by couples mourning the accidental destruction of their embryos.
My visceral response (and what I would say to the couples tied to this lawsuit) is this: I understand your need to pursue accountability and desire to hold someone responsible for your embryos’ destruction. If you are anything like me or the multitudes of women and men I’ve connected with around the world the past two decades, all of whom underwent IVF, I know how protective you are of your “childlings.” You may even have a photo of those embryos now tucked away where only you can find the image. I know. I do, too.
Twenty-one years ago, the photo of embryos my husband and I worked hard to create hung on our refrigerator under a favorite magnet. We gazed at the image longingly after trying for nearly a decade to conceive on our own. For weeks my body (pumped up on hormones) began to behave with the hallmarks of pregnancy. My breasts enlarged; my womb felt strangely different. Those embryos became my childlings.
“Childlings” was coined by Australian author and playwright Julia Leigh in her memoir “Avalanche: A Love Story,” and the term does a heroic job bringing into focus what the vast majority of those trying to conceive through IVF feel. Each expensive, physically and emotionally demanding step brings you closer to your much-desired child. In these circumstances, childing is an appropriate and evocative word. It is also a descriptive name that’s been strangely missing from the lexicon since the dawn of the IVF industry in 1978.
Early on, emerging commercial forces focused on reproductive assistance made a concerted effort to obfuscate their business. The first fertility clinics in the United States carefully tiptoed through the minefield that is reproductive rights to avoid intense scrutiny and regulation that might harm their bottom line. In more recent years, the multibillion industry has deftly nurtured and marketed a saccharine image — the purveyor of the gift of life — to expand its market well beyond those with infertility conditions. It now routinely beckons otherwise healthy individuals and those seeking a lifestyle choice. More than a few in the commercial IVF realm have benefited handsomely from never taking a position on when life begins.
Ironically, in light of the recent ruling, the fertility industry’s largest professional organization, the American Society for Reproductive Medicine, was originally headquartered in Birmingham, Ala. It relocated to Washington, D.C., in 2019 to lobby, one could argue, more effectively for growth.
Beyond expanding an already explosive culture war, the Alabama lawsuit also exposes the hypocrisy of IVF clinics. They “sell” the baby dream, use baby imagery in their marketing and promotional materials and hallways, and refer coyly during procedures to your “future children.” You unexpectedly swell with pride boosted in part by those hormones. During my embryo transfer, the clinic embryologist who arrived with my precious cargo referred to my embryos as “beautiful.”
Then several weeks later, when I began to bleed, the tune changed. The clinic staff conveniently looked the other way, medicalized my devastating loss in a dismissive and insensitive way, and pressed me to schedule another cycle. (“Cycle” is fertility clinic lingo for another $15,000 to $25,000 round of “baby making”.)
Those undergoing IVF are not cyborgs. We feel deeply. We bond with our embryos and that’s the truth. Inconvenient or not.
When life begins is a Gordian knot. In modern times, this enigma allowed commercial forces peddling fertility the opportunity to sidestep abortion’s fraught issues. Amid never-ending battles over reproductive rights, we can’t lose sight of what bioethicist Arthur Caplan said in 1988. It remains true today: “We’re talking about the creation of new lives, not a free market in products or services,’’ he said. “Caveat emptor is not enough of an ethic where making babies is concerned.”
The vagueness about how to categorize what’s at stake or to assign responsibility has helped IVF operators and their lucrative ecosystem of egg freezing, egg provider, sperm donor, and third-party reproduction partners in several ways. First, it gives cover when catastrophes transpire, such as lab failures. Following a fertility clinic storage system power loss in 2018 in Ohio (a similar occurrence in San Francisco happened within days), there was no mention of babies or future children. Instead, clinics relied on words like tissue and gametes to further dehumanize and minimize.
I felt the sucker punch and shared sense of grief then as now for those whose childlings were destroyed. Later, I was astonished that the loss of 4,000 embryos and eggs became nothing more than a passing story. One reason is that in many embryo-related lawsuits details are not accessible; the facts and testimony are sealed as part of settlements.
Second, the lack of accountability allows clinics to never have to acknowledge the primal loss and prolonged emotional trauma women (and men) experience when long-sought pregnancy pursuit ends in grief. It took me 10 years to recognize my IVF losses were a very real form of miscarriage.
Lastly, lack of IVF industry culpability allows clinics to sell the baby dream without any blame whatsoever for damages or harms incurred. IVF clinics can’t have it both ways: They can’t sell the baby dream and then pretend no childlings are created.
As was pointed out at an event on the future of reproduction a decade ago, “there is no natural constituency” to advocate for industry oversight. Instead, we are left with troubling questions. With so much hanging in the balance, we are long overdue in reaching some good answers — or at a minimum greater transparency and discussion around the complexity of these issues and the people harmed as well as helped through IVF.
Pamela Mahoney Tsigdinos is the author of “Silent Sorority: A (Barren) Woman gets Busy, Angry, Lost and Found.”