Alabama Supreme Court Rules Embryos Are Children—Here’s How That Can Impact IVF Patients

The ruling sets a dangerous precedent. Here's what to know about how it complicates and limits access to IVF.

Fact checked by Sarah ScottMedically reviewed by Jessie Rubin, MD

The Alabama Supreme Court ruled on February 16, 2024, that embryos should be defined and treated as “children.” The decision, which came almost two years after the overturning of Roe v. Wade, involved two wrongful death cases brought by couples whose frozen embryos were destroyed in an accident at a fertility clinic.

The all-Republican panel of Justices pointed to language in Alabama's constitution that says the state recognizes the "rights of the unborn child," according to the Associated Press. Justices also noted that fetuses that die in utero are covered under Alabama’s Wrongful Death of a Minor Act, and “extrauterine children”—aka frozen embryos—are included, as well.

“Unborn children are ‘children’ ... without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in the majority ruling.

Shortly thereafter, Alabama fertility clinics and patients were left wondering if the damage to embryos created during in vitro fertilization (IVF) could result in civil liability. The University of Alabama Birmingham quickly said its Division of Reproductive Endocrinology and Infertility was halting IVF treatments “as it evaluates the Alabama Supreme Court’s decision that a cryopreserved embryo is a human being” and at least two more fertility clinics in Alabama had paused IVF procedures indefinitely, fearing that patients and doctors could be subject to prosecution or punitive damages.

“Under Alabama’s Supreme Court ruling, frozen embryos created for in vitro fertilization now have the same legal rights as children in the state of Alabama,” explains Angie Beltsos, MD, who is board-certified in Obstetrics and Gynecology and in Reproductive Endocrinology and Infertility and serves as Chief Executive Physician at Kindbody, a fertility clinic with locations across the country. “This ruling contradicts science and, as we’ve already seen, will have a devastating impact on fertility treatments for the citizens of Alabama.”

But less than a month later, lawmakers stepped in and Republican Alabama Governor Kay Ivey signed a bill into law on March 6, 2024, to protect IVF.

"IVF is a complex issue, no doubt, and I anticipate there will be more work to come, but right now, I am confident that this legislation will provide the assurances our IVF clinics need and will lead them to resume services immediately," Gov. Ivey said in a statement.

Two IVF clinics in the state have resumed IVF, but one of them said it will continue to monitor developments. The bill protects any health professionals and clinics that provide IVF but it does not clarify if frozen embryos created through the process have the same rights as children.

“While we are grateful for the actions of Alabama legislators, this legislation does not address the underlying issue of the status of embryos as part of the IVF process—threatening the long-term standard of care for IVF patients,” Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, said in a statement. “There is more work to be done.”

Here’s what to know about the ruling and the questions it raises for how people will be able to conceive in Alabama and beyond.

IVF Facts

About 2.3% of all babies in the U.S. are born annually through assisted reproductive technology (ART), according to the Centers for Disease Control and Prevention (CDC). In vitro fertilization (IVF) is the main type of ART. To achieve IVF, eggs are extracted and fertilized, and then embryos are created. These embryos, which are often frozen, can be transferred into the uterus to achieve pregnancy.

How the Alabama Supreme Court’s Decision Can Impact Fertility Patients

When the Alabama Supreme Court issued its ruling, IVF patients were left in a troubling limbo.

Patients who had yet to start a cycle were wondering when and if they’d be able to pursue their dream of having a child or whether they’d need to move out of state to do so, pointed out Lauren Berson, founder and CEO of Conceive, a digital fertility support platform. And those who were in the middle of an IVF cycle—a grueling and expensive process that involves ultrasounds, blood tests, and injecting yourself with various medications—had been left in the dark about their next steps.

But there's more: as fewer clinics offer IVF in Alabama, the already pricey fertility treatment may become even less affordable and accessible.

“The costs of fertility treatments will likely rise as a result and could make it prohibitive for many families, especially since Alabama does not have a mandate for insurance coverage for infertility,” says Barry Witt, MD, a double board-certified OB-GYN and reproductive endocrinology and infertility specialist, and a practitioner with Illume Fertility. “Reproductive endocrinologists may feel it necessary to leave the state in order to practice in their field. All of this will result in restricted access to fertility and IVF care in the state.”

"Reproductive endocrinologists may feel it necessary to leave the state in order to practice in their field. All of this will result in restricted access to fertility and IVF care in the state."

Barry Witt, MD

The decision could also affect birthing parents’ health and success rates. “Many people also test their embryos during IVF for chromosomal abnormalities and discard abnormal embryos,” points out Dr. Witt. “There are concerns that they may be forced to maintain these embryos forever, or even worse, be forced to transfer them into their uterus, which would put them at high risk for miscarriage, stillbirth, or the birth of a child with significant, life-limiting medical conditions.”

Given that discarding embryos may be out of the question, there could also be additional pressure on patients and physicians to transfer more than one at a time, says Dr. Witt. “This would dramatically reverse the current trend towards reducing the incidence of riskier multiple pregnancies,” he notes.

There’s also a chance that patients hoping to create embryos would suffer as a result of fertility clinics being told they can only fertilize a limited number of eggs, points out Jessica Ryniec, MD, an OB-GYN and reproductive endocrinology and infertility specialist at CCRM Fertility in Boston.

“Will we need to limit the number of eggs we fertilize to avoid having embryos to freeze thus decreasing overall efficiency and success of the treatment and end outcomes, also increasing costs?” she asks. “And if we can freeze embryos, what will it mean for people who have completed their families but still have remaining embryos? Will they need to pay for storage in perpetuity?”

"Many people also test their embryos during IVF for chromosomal abnormalities and discard abnormal embryos. There are concerns that they may be forced to maintain these embryos forever, or even worse, be forced to transfer them into their uterus."

Barry Witt, MD

Scenarios like this have already played out in other countries, such as Italy, where there are laws limiting the number of eggs you can fertilize. As a result of this policy, patients have experienced higher costs, reduced access to care, an increase in multiple pregnancies as a result of transferring multiple embryos, as well as a higher risk of preterm delivery and pregnancy loss, says Dr. Ryniec.

Back in the U.S., patients who have already spent thousands of dollars and often many months or even years to create frozen embryos are wondering if they’ll be able to ship them in an attempt to conceive outside of the state. But fertility clinics and nationwide shipping services have also opted out of moving embryos out of state until they have more legal information.

"This slight window of hope for Alabamans currently undergoing IVF to continue their family-building treatment in other states just slammed shut," Collura said in a previous statement.

Cancer patients who want to preserve their fertility and freeze embryos ahead of treatment could also be impacted, points out Dr. Beltsos. “These patients require immediate care and cannot wait for clarification as providers in Alabama determine what to do next,” she says.

In short, the ruling has been taking a heart-wrenching toll on a population that’s already struggling physically and emotionally.

“It’s a quagmire of nightmare proportions that is leaving real people who have already been through so much—let’s not forget that the psychological impact of infertility patients is on a par with that of cancer patients—panicked, stressed, and concerned for the fact that every moment that goes by feels like it’s putting them further away from achieving their dream,” says Berson, citing an older study from 1993.

The Potential Legal Implications of the Alabama Ruling

Quite a bit about the downstream legal effects of the ruling is still up in the air, but there’s plenty of speculation about what the decision could lead to.

Lawmakers in Alabama were quick to introduce and pass the legislation to protect IVF. The new law offers protection to patients, doctors, and any professionals involved in any IVF process. In the meantime, the current Alabama Attorney General Steve Marshall also said he has “no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers."

But it’s unclear how far the state courts will extend embryos’ personhood status, says Kelly Dempsey, JD, a partner at Fox Rothschild Family Law Practice. She notes they’ll need to grapple with questions like, “Are doctors and clinics obligated to store embryos forever? Are families obligated to pay for that service? Would excess embryos or unused embryos ever be able to be destroyed? Or donated?”

The legal implications could reach far beyond just fertility providers and patients. “There is the potential for criminal and civil liability to attach to medical providers, donors of genetic material, attorneys, assisted reproductive technology agency staff, and virtually anyone involved in helping families grow through assisted reproductive technology,” says Dempsey.

Fertility clinics had paused treatments out of fear that they could be sued for not only discarding abnormal, nonviable embryos, but also if an embryo does not implant in a patient’s uterus, points out Daphne Delvaux, Esq., founder of Delvaux Law, the nation’s first law firm devoted entirely to women’s rights at work. “The parents may decide to sue for negligence and/or ‘wrongful death’ of the embryo,” she notes.

At the same time, while clinics will err on the side of caution, Delvaux suspects “they will also create pathways for transfer as one of the legal risks of letting these embryos sit in their clinics is being sued for ‘false imprisonment’ of the embryos.” She believes finding a way to safely ship frozen embryos to facilities out of state will be “the top priority of the clinics.”

The decision may also spur a “legal hellscape” for couples who aren’t on the same page regarding what to do with a frozen embryo.

“We will see one parent sue the other parent to enforce the ‘rights’ of the embryos, seeking to hold each other accountable for the destruction of embryos,” says Delvaux. “Importantly, being sued in a civil lawsuit is extremely expensive. Abusive partners may weaponize these lawsuits against the vulnerable spouse, abusing the legal system to force their will on the vulnerable spouse. Even the threat of litigation will likely cause a lot of women to carry pregnancies against their will.”

Abusive spouses might also be able to sue a partner for losing a pregnancy or experiencing a failed frozen embryo transfer, accusing them of "wrongful death."

When a couple tries to divorce, there may be "‘custody battles’ over these frozen embryos,” points out Delvaux. “If a man wins the custody case, we may see men implant embryos into another woman, against the will of the biological mother," says Delvaux.

What the Alabama Embryo Ruling Could Mean for the Rest of the Country

The experts we spoke to point out that the Alabama Supreme Court decision is cause for concern for all Americans.

“There are concerns that this could spread to other states who have already begun to limit reproductive rights,” says Dr. Witt.

If that happens, IVF patients and clinics in progressive states may be impacted too. “They should expect delays as Alabama patients will be flooding more progressive states for these services,” notes Delvaux. “Clinics in progressive states will be inundated with requests of parents residing in conservative states.”

This could lead to patients having less access until supply can meet demand, says Delvaux. Already, there aren’t nearly enough reproductive endocrinologists to cover the demand for fertility treatment in the United States.

“This is a new legal landscape that will be developing,” says Delvaux. “We should push for federal protections of IVF, which would render these sorts of rulings moot.”

"We should push for federal protections of IVF, which would render these sorts of rulings moot."

Daphne Delvaux, Esq.

To that end, Dr. Witt urges people who are concerned to contact their representatives in Washington, D.C., and ask them to support Senator Tammy Duckworth’s Access to Family Building Act, which establishes a statutory right to access IVF for Americans nationwide.

People can also advocate for reproductive health care by talking about their own experiences, says Dr. Ryniec. “Most important right now is that people continue to or start raising awareness about infertility by sharing their own stories,” she notes. “Educating ourselves and others about what personhood laws actually mean and how it will prevent doctors from providing or patients from receiving the standard of care when it comes to assisted reproductive technology is so important.”

If you have personal concerns, speak with your health care provider. Dr. Ryniec says donating to advocacy groups if you’re able to can also help, as well as voting. “Recognize that while reproductive health care should not be on the ballot, it is,” says Dr. Ryniec. “And no matter where you are, your voice and vote matters.”

For more Parents news, make sure to sign up for our newsletter!

Read the original article on Parents.