A recent ruling by the Alabama Supreme Court, which categorizes frozen embryos as children under state law, has sparked concerns among doctors and legal experts regarding its implications for fertility treatment.
The ruling stems from wrongful death claims filed by several couples whose frozen embryos were inadvertently destroyed at a fertility clinic. Justices cited a state law from the 1800s, allowing parents to sue over a child’s death, stating that it “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.”
This classification of embryos as children under the law could potentially limit access to in vitro fertilization (IVF), a process that involves fertilizing eggs with sperm in a laboratory to create embryos for implantation into a woman’s uterus. IVF often results in multiple embryos, some of which may be frozen for future use due to the likelihood of requiring multiple cycles for 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.”
Below are answers to common questions regarding the potential impact of the ruling on fertility care.
Is the Alabama Ruling Leading to the Closure of Fertility Clinics?
As a consequence of the Alabama ruling, numerous IVF clinics and embryo shipping companies that transport embryos to and from the state have ceased operations. This precautionary measure is driven by concerns of potential lawsuits in the event of any mishap involving the embryos, according to Diane Tober, PhD, an associate professor at the University of Alabama in Tuscaloosa, specializing in reproductive technology research.
Dr. Tober says, “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.”
What Is the Impact on IVF Patients?
According to Dr. Tober, this ruling carries significant consequences for IVF patients, who invest substantial emotional and financial resources in building their families. With fertility clinics in Alabama scaling back or ceasing operations, even those with the means to seek treatment out of state face considerable hurdles in continuing their IVF journey.
For individuals with frozen embryos and impending plans for implantation procedures, the suspension of clinic services may render their prior costly and invasive medical preparations for the IVF futile. Consequently, embryos could remain frozen indefinitely while patients continue to incur storage fees.
Simultaneously, Dr. Tober notes that individuals seeking to transport their embryos out of state to pursue treatment elsewhere are currently encountering restrictions or complete limitations. Shipping companies specializing in the transportation of eggs, sperm, and embryos worldwide are presently suspending operations in Alabama, further complicating patients’ options.
Dr. Kawwass points out that aside from the anticipated emotional strain, these limitations are expected to also impose a financial burden on individuals seeking to conceive. “They are likely to have additional costs associated with continued cryopreservation billing, additional travel, additional treatment, and having to reestablish care,” Dr. Kawwass says.
Is Traveling Out of State an Option for IVF?
Individuals contemplating IVF treatment in Alabama might choose to initiate the process in another state if they possess the financial means, time, and capability to do so. However, this opportunity may not be accessible to everyone.
“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. 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,” Dr. Tober says.
Could Other States Enforce IVF Restrictions?
With the Alabama court ruling effectively recognizing embryos as “persons,” there’s a chance that other states might adopt similar measures. Legislation proposing to designate embryos as children is currently under consideration in approximately twelve 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,” Dr. Kawwass says.
What’s the Connection Between the Alabama IVF Ruling and Roe v. Wade?
The recent Alabama IVF ruling’s link to Roe v. Wade stems from the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health. This decision overturned Roe v. Wade, effectively abolishing a fifty-year-old nationwide abortion right and granting states significant autonomy in regulating reproductive healthcare.
Dr. Kawwass says, “The ruling in Alabama is a direct result of the Dobbs decision and the overturning of Roe v. Wade. The Dobbs decision opened the door for personhood bills.”
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