In US, a state court ruling on IVF echoes far beyond Alabama

Written by Roni Caryn Rabin and Azeen Ghorayshi

An Alabama Supreme Court’s ruling that frozen embryos in test tubes should be considered children has sent shock waves through the world of reproductive medicine, casting doubt over fertility care for would-be parents in the state and raising complex legal questions with implications extending far beyond Alabama.

On Tuesday, Karine Jean-Pierre, the White House press secretary, said the ruling would cause “exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make.”

Speaking to reporters aboard Air Force One as President Joe Biden travelled to California, Jean-Pierre reiterated the Biden administration’s call for Congress to codify the protections of Roe v. Wade into federal law.

“As a reminder, this is the same state whose attorney general threatened to prosecute people who help women travel out of state to seek the care they need,” she said, referring to Alabama, which began enforcing a total abortion ban in June 2022.

The judges issued the ruling Friday in appeals cases brought by couples whose embryos were destroyed in 2020, when a hospital patient removed frozen embryos from tanks of liquid nitrogen in Mobile and dropped them on the floor.

Referencing anti-abortion language in the state constitution, the judges’ majority opinion said that an 1872 statute allowing parents to sue over the wrongful death of a minor child applies to unborn children, with no exception for “extrauterine children.”

“Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” Chief Justice Tom Parker wrote in a concurring opinion, citing Scripture.

Infertility specialists and legal experts said the ruling had potentially profound effects, which should be of concern to every American who may need to access reproductive services like in vitro fertilisation.

One in six families grapples with infertility, according to Barbara Collura, the president and CEO of Resolve, which represents the interests of infertility patients.

“You’ve changed the status of a microscopic group of cells to now being a person or a child,” Collura said. “They didn’t say in vitro fertilization is illegal, and they didn’t say that you can’t freeze embryos. It’s even worse — there is no road map.”

It has become standard medical protocol during in vitro fertilisation to extract as many eggs as possible from a woman, then to fertilise them to create embryos before freezing them. Generally, only one embryo is transferred at a time into the uterus in order to maximise the chances of successful implantation and a full-term pregnancy.

“But what if we can’t freeze them?” Collura asked. “Will we hold people criminally liable because you can’t freeze a ‘person’? This opens up so many questions.”

Reproductive medicine scientists also blasted the ruling, saying it was a “medically and scientifically unfounded decision.”

“The court held that a fertilised frozen egg in a fertility clinic freezer should be treated as the legal equivalent of an existent child or a fetus gestating in a womb,” said Dr. Paula Amato, the president of the American Society for Reproductive Medicine.

“Science and everyday common sense tell us they are not,” she said. Even in the natural world, she added, several eggs are often fertilized before one successfully implants in the uterus and results in a pregnancy.

Amato predicted that young doctors would stop going to Alabama to train or to practice medicine in the aftermath of the ruling, and that doctors would close fertility clinics in the state if operating them meant running the risk of being brought up on civil or criminal charges.

“Modern fertility care will be unavailable to the people of Alabama,” Amato predicted.

Couples in the midst of gruelling and costly infertility treatments in Alabama said they were overwhelmed with questions and concerns, and some said they feared their providers would be forced to close their clinics.

Megan Legerski, 37, of Tuscaloosa, Alabama, who is undergoing infertility treatment, said that she recently became pregnant after being implanted with an embryo created through in vitro fertilisation, but that she miscarried after eight weeks.

She and her partner have three more frozen embryos that they can implant, she said.

“The embryos to me are our best chance at having children, and we are extremely hopeful,” Legerski said. “But having three embryos in the freezer is not the same to me as having one that implants and become a pregnancy, and it’s not the same as having a child.

“We have three embryos. We don’t have three children.”

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