What Does the IVF Ruling Mean for Alabama Women?

Alabama's ruling that embryos created through in vitro fertilization should be considered children may curtail access to infertility treatments.

The Supreme Court of Alabama ruled on February 16 that the Wrongful Death of a Minor Act applies to all unborn children without limitation, including unborn children who are not located in the uterus at the time they are killed.

This means the embryos created through in vitro fertilization (IVFA) are considered children.

The Wrongful Death of a Minor Act was originally passed in 1872, long before the development of the IVF technology. The Act allows parents to sue defendants for "any wrongful act, omission, or negligence" causing their child's death.

The legislation does not define "child" or "minor child," and a prior Alabama Supreme Court case made clear that a fetus developing in utero is considered a child for the purposes of the Act. However, the latest ruling extended the definition of a child to include pre-embryos.

Some clinics in Alabama paused IVF treatments following the ruling, AP reports, due to concerns over possible legal consequences if embryos are destroyed in the process of pursuing IVF.

Amid mounting pressure, Alabama lawmakers voted on February 28 to extend protections to clinics in case of the "damage to or death of an embryo" during IVF services. However, the legislation did not address the legal status of embryos. Measures are expected to be approved next week.

What is in vitro fertilization?

About 2% of births in the United States are thought to be from assisted reproductive technologies such as IVF.

During IVF, mature eggs are collected from ovaries and fertilized by sperm in a lab. Then, fertilized eggs, or embryos, are placed in the uterus. One full cycle of IVF takes about two to three weeks.

IVF procedures are time-consuming, expensive, and invasive, and the success depends on many factors, including age and the cause of infertility.

For instance, women under the age of 30 have a 43% chance of getting pregnant after the first IVF cycle, compared to a 13% chance in 40-year-olds.

Normally, many fertilized embryos are created, but only a few are implanted in the uterus. The rest are stored in freezers to be used in the future or donated to other couples. Embryos can be destroyed if the couples do not plan further pregnancies, get divorced, or die.

What will be the consequences?

Since the ruling, most fertility clinics in Alabama have suspended IVF treatments, and at least one embryo-shipping company has stopped transferring embryos out of the state.

This ruling is crushing for the one in six people impacted by infertility, who may need IVF to build their families, and threatens the existence of fertility care within the state, according to RESOLVE, the National Infertility Association.

Dr. Mamie McLean of Alabama Fertility Specialists in Homewood said that in the past two weeks, she had called dozens of patients in the middle of fertility treatments, including women already scheduled for embryo transfers, to inform them that they could not move forward.

I have cried with patients who want nothing more than a baby, and, as their physician, I am unable to provide the fertility treatments that they desperately need.

McLean

Joanne Rosen, J.D., M.A., a practice professor at the Johns Hopkins Bloomberg School of Public Health and an expert in reproductive law, points out that many couples seek IVF because one of them is a carrier of a known genetic mutation associated with a serious disease or condition.

IVF allows embryos to be genetically tested prior to implantation. If a genetic mutation is discovered, the embryo is usually discarded.

"Does that mean that pre-implantation genetic testing should no longer take place because you can't discard the embryos? Those are just two of the questions that arise involving what to do with these embryos if they are human beings and can give rise to liability," she said in an interview.

Verda J. Hicks, M.D., FACOG, president of the American College of Obstetricians and Gynecologists, called the removal of options for preserving fertility an unconscionable act of inhumanity.

Hicks said in a statement, "This decision will likely have disastrous effects on the training, recruitment, and retention of obstetrician–gynecologists and fertility experts in Alabama, worsening access and equity issues and penalizing those already living in a state with diminished access to all obstetric and gynecologic care."

The ruling may set a precedent

Nicole Huberfeld, Edward R. Utley Professor of Health Law and co-director of the Boston University's Program on Reproductive Justice, says that the ruling is rooted in Alabama statute and its constitution and doesn't directly impact any other state.

However, it could set a precedent that other states would follow, as there are already a handful of other states that have laws on the books defining personhood as beginning at fertilization, according to Huberfeld.

Alabama's ruling comes as reproductive rights in the U.S. are increasingly restricted. Since Dobbs stripped away federal protections for abortion, 12 states, including Alabama, imposed near-total abortion bans. Care is no longer available in North Dakota and Wisconsin, although a ban is not being enforced.

If left unchallenged, Alabama's ruling can restrict access to IVF treatment, leaving thousands of individuals without the possibility of conceiving.