The sorry history of anti-miscegenation and forced sterilization laws in the U.S. provides ample evidence that preemptive government interference in the reproductive decisions of its citizens should be strongly rejected. In a free society, the default should be that individuals are best situated for weighing the costs and benefits, moral and material, with respect to how, when, with whom, and whether they choose to become parents.

The now infamous Alabama Supreme Court decision earlier this month essentially outlawing the use of in vitro fertilization (IVF) by would-be parents highlights the consequences of unwarranted government meddling in reproductive decisions all too well. At its most basic, IVF is a treatment for infertility involving the fertilization of eggs in a petri dish with the goal of installing them afterward in a woman's womb where they have a chance to implant and hopefully develop into a healthy baby. Since the implantation of any specific embryo is far from guaranteed, IVF often involves creating several embryos that are stored in liquid nitrogen that could be made available for later attempts at achieving pregnancy.

Some 12 to 15 percent of couples in the U.S. experience infertility. Fortunately, since 1981 many infertile folks have been able to avail themselves of IVF and assisted reproduction techniques with the result that more than 1.2 million Americans have been born using it. Currently, about 2 percent of all babies in the U.S. are born through assisted reproduction. A 2023 Pew Research poll reported that "four-in-ten adults (42%) say they have used fertility treatments or personally know someone who has." Given the wide public acceptance and ubiquity of IVF, it is no surprise that a new Axios/Ipsos poll finds that two-thirds of Americans oppose the Alabama court ruling that frozen IVF embryos are the equivalent of born children.

The moral intuition that embryos are not people implied by these poll results reflects what research has revealed about the fraught and complex biology of uterine implantation and pregnancy. In both IVF and natural conception most embryos will not become babies. Research estimates that between 50 to 70 percent of naturally conceived embryos do not make it past the first trimester. In other words, one foreseen consequence of conception through sexual intercourse is the likely loss of numerous embryos.

In his 2012 Journal of Medical Ethics article, University of Illinois Chicago philosopher Timothy Murphy argued that the moral good of the birth of a child counterbalances the unwanted but nevertheless foreseen loss of other embryos in both natural and IVF conception. Again, polling suggests that most Americans endorse this moral reasoning.

In another 2012 article speculating on the metaphysical ramifications of endowing embryos with souls, Murphy basically recapitulates the line of reasoning in my 2004 article asking, "Is Heaven Populated Chiefly with the Souls of Embryos?" There I suggest that "perhaps 40 percent of all the residents of Heaven were never born, never developed brains, and never had thoughts, emotions, experiences, hopes, dreams, or desires."

Murphy similarly concludes, "Since more human zygotes and embryos are lost than survive to birth, conferral of personhood on them would mean—for those believing in personal immortality—that these persons constitute the majority of people living immortally despite having had only the shortest of earthly lives."

Metaphysical conjectures aside, former President Donald Trump clearly knows where most Americans stand on IVF. "We want to make it easier for mothers and fathers to have babies, not harder! That includes supporting the availability of fertility treatments like IVF in every State in America," he posted on Truth Social. He's right.

Now, the 124 denizens of the House of Representatives (all Republicans) who cosponsored just over a month ago the Life at Conception Act are scrambling to explain that, no, they did not really mean that every frozen IVF embryo is a "human person" entitled to the equal protection of the right to life. As a butt-covering move, Rep. Nancy Mace (R–S.C.) is circulating a House resolution "expressing support for continued access to fertility care and assisted reproduction technology, such as in vitro fertilization."

More substantially, Sen. Tammy Duckworth (D–Ill.) is pushing for the adoption of the Right to Build Families Act that states, "No State, or official or employee of a State acting in the scope of such appointment or employment, may prohibit or unreasonably limit…any individual from accessing assisted reproductive technology."

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