How an Alabama Court Ruling on Frozen Embryos May Restrict IVF
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A recent Alabama Supreme Court ruling that considers frozen embryos to be children under state law has doctors and legal experts raising concerns about the implications for fertility treatment.
The decision involves wrongful death claims brought by several couples whose frozen embryos were accidentally destroyed at a fertility clinic. In the ruling, justices said that a state law dating back to the 1800s permitting parents to sue over a child’s death “applies to all unborn children,” and that “unborn children are ‘children’ under the (law) without exception based on developmental stage, physical location, or any other ancillary characteristics.”
Defining embryos as children under the law has the potential to restrict access to in vitro fertilization (IVF), which involves combining eggs with sperm in a lab to develop an embryo that can be implanted into a woman’s uterus. Multiple embryos may be created, and sometimes the ones that aren’t implanted right away are frozen for future use because IVF can take multiple cycles to result in a successful pregnancy.
Equating an embryo to a child is scientifically unfounded, says Jennifer Kawwass, MD, the medical director of the Emory Reproductive Center in Atlanta. “The clinical ramifications of such a legal decision are tremendous and will undoubtedly have unintended consequences, including limiting the capacity of physicians to care for patients with infertility, some of whom are reliant on IVF to be able to build their families.”
Here are some common questions about how the ruling may affect access to fertility care.
Are Fertility Clinics Closing After the Alabama Ruling?
Because of the Alabama ruling, many IVF clinics and shipping businesses that send embryos in and out of the state have already halted operations because they fear lawsuits if something happens to the embryos, says Diane Tober, PhD, an associate professor at the University of Alabama in Tuscaloosa who studies reproductive technology.
“Accidents involving embryos — including dropping petri dishes containing them, freezer failures, and other human errors — are common enough occurrences to warrant extra caution until this issue is hopefully resolved in favor of clinics and fertility professionals who handle these materials,” Dr. Tober says.
Where Does This Leave IVF Patients?
This ruling has very serious implications for IVF patients, who go to great lengths and emotional and financial costs to create their families, Tober says. That’s because as fertility clinics in Alabama curtail or halt services, even patients with the means to travel out of state can’t easily continue an IVF process elsewhere.
For those who already have frozen embryos and upcoming plans for implantation procedures, clinics halting services may mean they went through costly and invasive medical preparations for IVF in vain. Embryos may remain frozen while patients pay for storage fees indefinitely.
At the same time, people who want to ship their embryos out of state to try to access care elsewhere are currently limited, if not cut off, from their options, because shipping companies specializing in sending eggs, sperm, and embryos around the world are stalling operations in Alabama right now, Tober says.
In addition to what is likely to be a devastating emotional toll, these restrictions will take a financial toll on people trying to conceive, Dr. Kawwass notes. “They are likely to have additional costs associated with continued cryopreservation billing, additional travel, additional treatment, and having to reestablish care,” Kawwass says.
Can People Travel Out of State for IVF?
Some people considering IVF in Alabama may opt to start the process out of state if they have the money, time, and ability to go elsewhere. But not everyone will have this option.
“People who are affluent will have an easier time accessing assisted reproductive technologies out of state or out of country than those who are not as privileged,” Tober says. “For people who have reproductive materials stored in Alabama, if this situation does not get resolved in their favor, the likelihood of being able to transport their embryos or even sperm or eggs out of state could be compromised.”
Will Other States Also Restrict IVF?
The Alabama court ruling essentially grants embryos “personhood,” and it’s possible that other states will follow suit. Legislation that would classify embryos as children is pending in roughly a dozen states.
“All citizens in the state of Alabama and in any other state that enacts a personhood bill are at risk of losing access to fertility treatment,” Kawwass says.
How Is the Alabama IVF Ruling Tied to Roe v. Wade?
When the U.S. Supreme Court struck down Roe v. Wade with its 2022 decision in Dobbs v. Jackson Women’s Health, it eliminated a nationwide right to abortion that had been in place for half a century and gave states wide latitude to make their own decisions about how much to restrict reproductive healthcare.
“The ruling in Alabama is a direct result of the Dobbs decision and the overturning of Roe v. Wade,” Kawwass says. “The Dobbs decision opened the door for personhood bills.”
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