Rabea Benhalim
Volume 77, Issue 1, 166-222
Anti-abortion activism and litigation have challenged established caselaw on the legality of in vitro fertilization (IVF) and the legal treatment of IVF fertilized eggs. These challenges rely on conservative Christian ideologies that full personhood occurs at fertilization. Litigation has primarily arisen out of wrongful death suits and divorce proceedings, wherein a party either has destroyed or seeks to dispose of frozen blastocysts. Some legislatures now seek to regulate the treatment of IVF fertilized eggs vis-á-vis legislation, as politicians increasingly seek to ban any destruction of human fertilized eggs by legally defining human life as beginning at fertilization. However, the question of when legal life begins is fundamentally an ethical and theological question of belief.
These shifts in the legal treatment of fertilized eggs coincide with recent Supreme Court cases that establish greater religious freedom claims. Notably, these cases have exclusively addressed Christian petitioners’ claims. It remains to be seen whether similar claims brought by adherents of other faiths will receive the same protections. While Jews and Muslims have challenged anti‑abortion laws on religious freedom grounds, similar litigation has yet to be brought within the IVF context. This Article argues that Muslims and Jews are well positioned to bring litigation challenging limitations on the disposal of IVF blastocysts.
The media has focused on the potential for IVF restrictions in states like Alabama and Texas. However, little attention has been given to the state of Louisiana, where such restrictions are a reality. This Article concludes by looking at the State of Louisiana as a case study for IVF restrictions, both in terms of the type of legislation anti-abortion activists will likely try to pass in other states, and to describe the religious freedom challenges Jews and Muslims might bring.
Furthermore, the Article argues that fetal personhood legislation that applies to IVF fertilized eggs substantially burdens the religious freedom of peoples with differing beliefs as to when potential and full human life begin. This Article is the first to make a religious freedom argument regarding IVF regulation. It is also the first to bring the jurisprudence of other religions, namely Judaism and Islam, into the legal conversation on IVF, in which conservative Christian perspectives typically dominate.