This post is probably a bad idea. I typically try to avoid hot-button political issues on Just FYI, not least because our culture is saturated with such content already. There is also additional pressure—a kind of gravitational pull, really—to adopt a partisan position on a given question. But partisanship suits neither my intellectual formation nor my personal disposition. As a “student” of Søren Kierkegaard, who himself was indebted to the philosophical method of Socrates, I prefer to think in dialectical terms, weighing arguments and counterarguments, even if such considerations often lead to a deferral of truth-claims. Moreover, as a Catholic, I tend to harbor a degree of skepticism about the modern nation-state. As human institutions go, the state is fairly new on the scene, only coming into fruition over the last few centuries—and with dubious results (including, for example, the French Revolution, the American Civil War, World War I, World War II, and so on). So, while I do not deny that the state system currently constitutes the global political establishment, I would like to believe that a higher source of wisdom is available. Granted, I’m not always confident that Catholicism actually represents such a “higher source,” but the Church has been around for two millennia: “And the gates of hell shall not prevail against it” (Matthew 16:18).
All of which is to say: I tend to observe political controversies with a jaundiced eye. Not only do I not trust how much I myself know—there is almost always another article or document or point of view to take into consideration—but I have doubts about the material that I do read. That there is significant bias in our media probably goes without saying, but recent studies have shown that such biases are intensifying. As I wrote earlier this year, I am increasingly sympathetic to Jacques Ellul’s argument that propaganda is an essential feature of liberal societies, both in terms of giving citizens a sense of political agency and in terms of facilitating agreeable social virtues amid the decline of traditional institutions such as the Church. Hence, while I am in theory opposed to the notion of a post-truth society, I think we are quite close to one in practice—not necessarily because we are constantly being lied to, but because we are being fed a steady diet of decontextualized truths (“facts”) and emotional perspectives. As Hannah Arendt wrote in her 1971 essay “Lying in Politics”: “Truth or falsehood—it does not matter which anymore, if your life depends on your acting as though you trusted; truth that can be relied on disappears entirely from public life, and with it the chief stabilizing factor in the ever-changing affairs of men.”
It is with such concerns in mind that I wade into the muddy waters of the now infamous “LePage v. Center for Reproductive Medicine” case in the state of Alabama. The case goes back to the 2010s when three sets of prospective parents engaged the services of the Center for Reproductive Medicine in Mobile, Alabama. By virtue of the process of in-vitro fertilization (IVF), the Center was able to help these respective parents conceive children outside of the mother’s uterus. Their embryos were brought to “a few days” of age and then stored in the Center’s “cryogenic nursery,” where extrauterine embryos can be preserved alive at extremely low temperatures for later use. Presumably such a nursery would be located in a secure area, but in December 2020 a patient at an adjacent hospital, owned by the Mobile Infirmary Association, wandered into the nursery and gained access to the embryos. Whether this patient was acting out of malice or curiosity has not been disclosed, but, either way, his/her plan was not well thought out. Upon touching the frozen embryos, his/her hand was immediately freeze-burned. The embryos were then dropped onto the floor, rendering them unviable for later implantation and birth.
In the aftermath of these events, the parents of the destroyed embryos brought two lawsuits against the Center and the Association. Their claims were asserted under the state of Alabama’s Wrongful Death of a Minor Act, though they also put forward alternative common-law claims of “negligence and wantonness” in the event that the embryos were deemed “property” and not “children.” In other words, there was doubt as to how the destruction of frozen embryos would be legally understood. To be sure, the lawyers for the Center and the Association responded precisely in this way, arguing that a cryopreserved embryo, whatever else it may be, is not a “child.” The trial court sided with the Center and the Association, though it did recognize a lesser breach-of-contract claim on the part of one set of parents. The plaintiffs appealed, thereby kicking the lawsuit “upstairs” to the Supreme Court of Alabama.
Already one can see why “LePage v. Center for Reproductive Medicine” would become a flashpoint in American politics. While it’s not identical to landmark cases such as “Roe v Wade” (1973) and “Dobbs v. Jackson Women's Health Organization” (2022), it certainly trades in many of the same concepts and questions. The issue that particularly sticks out, at least to me, is that of determining precisely what a cryopreserved embryo is or, in the language of philosophy, its “quiddity.”
In writing the majority opinion for the Supreme Court of Alabama, Justice James (“Jay”) Mitchell acknowledges this problem at the outset. At issue, Mitchell notes, is not whether an unborn child meets the status of a human being: Alabama’s preexisting wrongful-death statutes make this point clear in advance. No, the problem is deciding whether or not these preexisting laws apply to “unborn children who are not physically located ‘in utero’…at the time they are killed.” According to Mitchell, the plaintiffs’ appeal amounts to a kind of defense of IVF-conceived embryos. After all, if extrauterine children are not covered by Alabama’s Wrongful Death of a Minor Act, then an embryo conceived through IVF and gestated to term in an extrauterine environment (a process that is now scientifically possible, but ethically questionable) would not legally qualify as a “child” and therefore would lack legal protection. Mitchell calls these “weighty concerns” but goes on to assert that the extant Wrongful Death of a Minor Act already covers extrauterine children, particularly in the wake of the Court’s reaffirmations of the act’s language and scope in a pair of cases from the 2010s. In short, since courts are enjoined to interpret statutes based on their common meanings, Mitchell contends that the Supreme Court of Alabama is bound to decide in accord with the definitions of several “mainstream dictionaries” and prior legal rulings. As Mitchell puts it:
The upshot here is that the phrase "minor child" means the same thing in the Wrongful Death of a Minor Act as it does in everyday parlance: "an unborn or recently born" individual member of the human species, from fertilization until the age of majority.
There are other factors at play here as well—for example, the merit of the plaintiffs’ alternative common-law claims of negligence—but the bottom line is that the Supreme Court of Alabama reversed the trial court’s previous decision and sided with the plaintiffs. Mitchell’s opinion concludes by pointing out that the defense may yet have further legal recourse, though, for the time being, any such countermeasures fall outside the purview of the Alabama’s highest court, which is “‘a court of review, not a court of first instance.’”
Released on February 20, 2024, Mitchell’s opinion is tendered in dry, juridical prose. However, the response to the Supreme Court of Alabama’s decision was anything but. According to The Washington Post, many Alabamians were overcome by “shock, anger, [and] confusion.” The Guardian reported that a number of doctors felt the same way. Moreover, this outrage seemed justified when three of seven IVF providers in Alabama hit the proverbial pause button on IVF treatments, not least because the LePage ruling raises questions about what facilities are to do with abnormal or surplus embryos. Even though Alabama attorney general Steve Marshall announced that his office did not intend to prosecute IVF clients and/or providers, the possibility of future lawsuits was sufficient to dissuade certain reproductive centers. Consequently, in early March, the state of Alabama quickly moved to pass legislation designed “to protect doctors, clinics and other health care personnel who provide IVF treatment and services by offering such workers civil and criminal ‘immunity’.” As longtime Alabama governor Kay Ivey put it, "IVF is a complex issue, no doubt, and I anticipate there will be more work to come, but right now, I am confident that this legislation will provide the assurances our IVF clinics need and will lead them to resume services immediately.”
Ivey’s reference to “more to work to come” indicates that this matter remains far from settled. After all, it’s clear that people who receive IVF treatment are not necessarily in agreement about its legal and/or moral implications. On the one hand, the plaintiffs in the “LePage v. Center for Reproductive Medicine” case viewed their cryopreserved embryos as “unborn children.” Thus they were willing to pay for the storage of their embryos and felt entitled to a legally-binding amount of security.
But others see it differently. “Audrey B,” an Alabama woman who underwent successful IVF treatment at the University of Alabama at Birmingham, told ABC News that she still has two embryos in cryopreservation. At one point, she and her husband planned to make use of at least one of the two remaining embryos—that is to say, to have one of the embryos transferred to her uterus and subsequently brought to term—but now she is uncertain. Hence, in the wake of the LePage ruling, what is she to do with the two embryos in cryostorage? Is she allowed to destroy them? Can she send them to another state and decide what to do with them later? "It just feels like now we do not have any control over our embryos," Audrey remarked, "Like, what does that decision do for me? Like, am I going to have to pay for storage for the rest of my life for those embryos if I don't use them?"
This last point may seem a touch indelicate, but it is not unreasonable. In the same report, another IVF client disclosed that she is already paying nearly one thousand dollars per year to store her embryos—and that was before the LePage decision. “I'm not ready to get rid of that embryo yet,” she concluded, “[but] I feel like it should be my choice if I want to keep it, donate it, discard it. Whatever I decide I want to do, it should be my choice, not the state of Alabama's."
This dilemma speaks to one of underlying issues in this entire debate—one that, I must admit, I had not pondered before “LePage v. Center for Reproductive Medicine.” I’m speaking of the medical-industrial complex that promotes and facilitates IVF treatments. In a recent article for National Review, Scottish journalist Madeleine Kearns used the LePage case to shine a light on what she terms “the IVF industry.” According to Kearns, there is a massive disparity between the number of IVF embryos that are brought to term versus the ones that are either “discarded” or frozen—roughly 12 to 1. In other words, as Kearns puts it, there are a “million or so embryos on ice” and “millions more thrown in medical waste bins.” What status do they have? What are they? As a pro-life advocate, Kearns believes that the Supreme Court of Alabama ruled correctly in the in LePage case, even as she argues that Alabama’s legislative moves to safeguard the IVF industry contradict the state’s otherwise pro-life stance. In this regard, and with palpable irony, she’s in agreement with Alabama state senator Bobby Singleton—a pro-choice Democrat who recently insisted that eliminating frozen embryos is tantamount to abortion. For Singleton, as for Kearns, the fact that Republicans overlook this reality amounts to little more than politically-motivated hypocrisy.
Wherever one lands on this problem, I can’t imagine anyone denying its complexity. As in other hot-button issues—abortion and gun control readily come to mind—there is a veritable collision between individual rights, technological capability, and traditional morality. Sorting through these questions is hard, time-consuming work, and the constant arrival of new examples and counterexamples seems to present us with an ever-receding horizon. No wonder that many people prefer to simply pick a political party and ride out the storm.
Yet, as I told a friend of mine on the day that Mitchell’s majority opinion was released, the unfortunate truth is that partisanship only scratches the surface of the challenges we’re facing. The often bitter Democrat/Republican divide in the United States approximates what German philosopher Martin Heidegger (1889-1976) called an “ontic” (ontisch) matter. That is to say, this partisan split represents an “everyday” way of categorizing our various commitments and entanglements—one that is formed by our immediate cultural-linguistic influences, not to mention our daily habits and practices On a more primordial level, however, philosophical questions persist. It is not enough, Heidegger reminds us, to simply refer to a particular case or instance in the process of discerning the truth. No, we must ask deeper “ontological” (ontologisch) questions about what the truth is and why we see the world in the way that we do.
Yet, while this latter task is the perennial business of philosophy, it has gotten increasingly muddled in the modern world. According to Heidegger, this is because modernity is an age of technology. He lays out this case in a late series of lectures, published in 1954 under the apt title The Question Concerning Technology (Die Frage nach der Technik). Yet, the roots of these talks go back to at least Being and Time (Sein und Zeit, 1927). Heidegger had long been suspicious of the supposition that the human subject, to paraphrase Simon & Garfunkel, is a rock and an island. This is a notion popularized by the French polymath René Descartes (1596-1650), whose first principle “I think, therefore I am” (cogito, ergo sum) is often said to have founded the modern spirit. For Heidegger, however, Cartesian thinking can’t help but overlook the fact that we are “thrown” into a world with preexisting purposes, traditions, and valences. We do not so much shape our world as are shaped by it. We receive more than we give.
In Being and Time, Heidegger’s analysis tends to center on Dasein—a word that literally means “being there” but, for Heidegger, refers to the particular way that human beings exist or experience the world. But as World War II came and went—a conflict that saw Heidegger go from an intellectual darling of the German Right to an outsider under investigation by the Gestapo—Heidegger increasingly turned his attention to the socio-historical context in which Dasein finds itself. In Contributions to Philosophy (of the Event) (Beiträge zur Philosophie (Vom Ereignis)), written in the late 1930s but published posthumously, Heidegger observes that “machination” (Machenschaft) has become the lens through which we understand human existence. In striking fashion, particularly in light of the Alabama IVF case, Heidegger argues that Machenschaft makes things look to us like “exploitable and manipulable objects.” That this point of view may be untrue is increasingly hard for us to see. Indeed, a general “dread of questioning” accompanies the rise of machination, which directs “everything toward calculation, utility, breeding, manageability, and regulation.”
These insights coalesce in The Question Concerning Technology. The goal of this work, says Heidegger, is “to prepare a free relationship to [technology],” though this can only happen if we understand what technology is. Most people, after all, think of technology as a means to end. It is just an instrument for attaining or facilitating a certain outcome. Yet, according to Heidegger, we must also ask: “What is the instrumental itself? Within what do such things as means and end belong?” He answers these questions by asserting that technology is a form of “bringing-forth” (poiēsis). In other words, technology is not a natural process but, rather, a human act of revealing something about the world that was previously hidden or latent. This “unconcealment” reveals something true about the world—Heidegger emphasizes that the Greek word for “truth” is alētheia, which literally means “unconcealment”—but it can vary across time and context. Just as Dadaism reveals something different about the world than Cycladic art, so does modern technology reveal in a way that diverges from its premodern iteration. The hydroelectric dam and the creekside watermill are both technologies, but they express something dissimilar about the world and about humanity’s role in it.
For Heidegger in particular—and this is key in relation to the IVF industry—modern technology is defined by an attempt to extract and store that which would otherwise organically occur in nature. It is a “challenging” (Herausfordern) of the natural world to supply energy and/or resources. With this in mind, Heidegger identifies the essence of modern technology as “enframing” (Gestell). To look at the world in the mode of enframing is to see that “everything is ordered to stand by, to be immediately on hand, indeed to stand there just so that it may be on call for a further ordering.” Modern technology, in short, reduces all things to the status of “standing-reserve” (Bestand). We “store up” things for later consumption and/or use, and this task is as true of wind farms and meat-packing plants as it is of biotech manufacturing centers and cryogenic nurseries.
Yet, as modern technology becomes more and more powerful, we question it less and less. There seems to be no way to resist its logic and, for that reason, no reason to limit its scope. And when restrictive efforts do appear—as when environmental groups seek to limit oil drilling or, more to the immediate point, when the Supreme Court of Alabama holds IVF providers responsible for not adequately safeguarding their “inventory”—there is almost always an immediate outcry. None of this would surprise Heidegger, who insists that modern technology “is an ordaining of destining (Geschick).” That is to say, socio-historical conditions have formed modern human beings in such a way that they give priority to enframing, so much so that “it comes ever more to elude our critical gaze.” We have, Heidegger says, arrived at a point in time when “beings [have been transformed] into intrinsically meaningless resources.” If a thing can be used to serve human desires and proclivities, then it is stored up and placed in “standing-reserve.” But if it does not prove useful, or if it has outlived its usefulness, then it can be discarded and forgotten. Precisely what that thing is is of no consequence. It could be a stale box of Cap’n Crunch or a human life—a point that Heidegger himself underscores. What else is a human resources department, he suggests, but a way of screening and organizing our lives? Indeed, what are the ramifications of identifying human beings as “resources” to begin with? Is it not the instrumentalization of all things—the triumph of technological nihilism over all other ways of understanding the meaning of Being.
Hence, for Heidegger, the enframing of modern technology represents a paradoxical threat to human wellbeing. It caters to our wants and whims so readily that we longer ask what it is doing, even when it reduces our human lives to objects of utility. “Where this ordering holds sway,” Heidegger writes, “it drives out every other possibility of revealing,” especially the form of “revealing which…lets what presences come forth into appearance.” Modern technology is a holding—even a taking—but never a “letting be” or a receiving. Thus Heidegger’s fundamental task in The Question Concerning Technology is to interrogate, as if for the first time, the nature and purpose of technology. Only then can we relate to our modern world in genuine freedom, rather than in unreflective servility. In a well-known passage, Heidegger thereby concludes, “The closer we come to the danger, the more brightly do the ways into the saving power begin to shine and the more questioning we become. For questioning is the piety of thought (die Frömmigkeit des Denkens).”
In the end, my goal in this essay is not unlike that of Heidegger. Needless to say, there is already a plethora of content examining “LePage v. Center for Reproductive Medicine” from either a Republican or a Democratic standpoint. This material typically weighs the legal and/or political implications of the case. Has the Supreme Court of Alabama unintentionally hurt the Republican Party at the polls? Or is the controversy raised by the case simply another example of the so-called “liberal media” distorting the truth, since it is clear, even undeniable, that the LePage ruling sides with families using IVF? Either way, it does seem fair to conclude that the issues occasioned by this case are not going away anytime soon. Just two days ago, The Washington Post published a story about the “self-policed” IVF industry, which, shockingly, is not required to report “errant episodes” to the government or even to clients. Moreover, earlier in April, The New York Times issued an article about fertile couples who are electing to conceive children through IVF, rather than through interpersonal sex. The idea, it seems, is to optimize the procreative process. Where does this sort of thing end—and on what grounds?
The Supreme Court of Alabama confronted these questions and reached a legal decision. It has been largely vilified for doing so, but, as the expression goes, “someone had to do it.” That is to say, someone, at some point, had to venture an answer as to what exactly is being created in IVF labs. And while the ramifications of the LePage ruling are manifold and well beyond what I can or should comment on here, it must be said that the Court’s decision is not absurd. Surely the “objects” kept in standing-reserve at cryogenic nurseries are different than ice cream and frozen pizza. Surely the cryogenic nursery itself is more significant than the “Beer Cave” at the local 7-Eleven. Indeed, at least one Nashville-area fertility clinic agrees, since it distinguishes itself from competing centers by highlighting its “advanced security systems,” which are designed “to protect your precious materials and give you peace of mind.”
This sort of language is eye-catching and, at minimum, should give us pause. That many would rather not, preferring slogans and sound bites to patient reflection, is another sign of our society’s enthrallment to the power of enframing. It is no wonder that, by the end of his life, Heidegger had exchanged the cautious optimism of The Question Concerning Technology for a darker, almost apocalyptic mindset. In a September 1966 interview with the news magazine The Mirror (Der Spiegel)—an intriguing and, at times, intense discussion that was not published until after Heidegger’s death nearly a decade later—Heidegger wonders if the efforts of philosophy to provoke serious reflection on “the planet-wide movement of modern technicity” are too little, too late. As he puts it:
Philosophy will be unable to effect any immediate change in the current state of the world. This is true not only of philosophy but of all purely human reflection and endeavor. Only a god can save us. The only possibility available to us is that by thinknig and poetizing we prepare a readiness for the appearance of a god.
A powerful and moving piece, Chris. I hope this one will find its way into further publication and a wider audience.
Good article man - can the Humanities save us?