The Alabama Supreme Court’s 2024 ruling in LePage v. Center for Reproductive Medicine, which granted the legal status of children to cryopreserved embryos, is not just a landmark in the nation’s ongoing abortion disputes. It is a shift in how the law thinks about personhood and reproductive rights, with implications for IVF practices, as well as abortion, contraception, and family planning. This article argues the decision is a struggle over the source and method of legal authority itself. It seeks to force American law to abandon its commitment to what I call the internal authority—a jurisprudence of reasoned accommodation and public deliberation, and instead submit to a jurisprudence of proclamation tethered to external authority, which draws on absolute claims about when life begins. This article shows how this proclamatory jurisprudence exploits the ambiguities of reproductive technology to construct a constitutionally defective status I call “asymmetrical personhood,” a legal fiction that grants embryos a single, symbolic right, such as a wrongful death claim, for the functional purpose to subordinate the established liberty and equality rights of born persons. The selective personhood status, and the proclamation behind it, violates the Fourteenth Amendment principles against state-imposed dogma and gender-based discrimination. To restore constitutional coherence, this article proposes concrete judicial and legislative remedies, a judicial doctrine of Metaphysical Abstention and a framework of Relational Stewardship, to govern assisted reproductive technologies.

Continue reading The Jurisprudence of Proclamation: Fetal Personhood and the Struggle of Legal Authority