What to know about the Alabama embryo ruling and its IVF implications

What to know about the Alabama embryo ruling and its IVF implications

Frozen embryos created through in vitro fertilization (IVF) are people, Alabama’s Supreme Court ruled last week, opening up a new front in the national debate over reproductive rights.

The ruling, which declared that clinics can be held liable for discarding frozen embryos, has sparked fears that IVF services in the state could be restricted or even ended.

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Reproductive rights experts say courts in other states could issue similar rulings or state lawmakers could pass related legislation - moves that could leave clinics nationwide vulnerable to lawsuits over frozen embryos and hinder access to fertility treatment.

On Tuesday, the White House said the fallout from the ruling is “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.”

Here’s what you need to know.

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What is IVF, and how common is it nationally?

IVF, a treatment for many types of infertility, is an assisted reproductive technology that involves multiple steps. Patients self-administer hormone injections to stimulate egg production, and medical staff retrieve mature eggs from ovaries, place them in petri dishes and fertilize them with sperm.

An embryo created during the IVF process can be transferred to the uterus in hopes that it is successfully implanted into the lining for a healthy pregnancy, or frozen for the future. Even when one embryo is immediately transferred, freezing multiple other embryos is standard procedure. According to Johns Hopkins Medicine, embryos can be safely preserved for 10 years or longer.

One cycle of IVF, from the start of hormone injections to implantation of the embryos into the uterus, can take two to three weeks.

A cycle costs anywhere from $10,000 to $25,000, depending on whether patients decide to pay for genetic testing or other procedures to increase the likelihood that eggs develop into healthy embryos, The Post reported previously.

The goal of IVF is to create enough embryos to have the best chance at pregnancy, according to Barbara Collura, who heads Resolve: The National Infertility Association. Typically, people do not use all the embryos they create. Besides being frozen, embryos can be discarded or donated, either to others wanting to have children or to medical science, Collura said.

“Until the ruling, the sole rights of the embryo were with the people who created it,” she said, adding that this is no longer a certainty.

The Centers for Disease Control and Prevention reports that IVF accounts for 1 to 2 percent of the nation’s births annually, and accounted for 91,906 births in 2021. In Alabama, there were 1,219 IVF procedures and 407 live birth deliveries in 2021, according to the CDC.

Collura said it’s a very important treatment for people experiencing infertility - 1 in 6 people globally.

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What did the Alabama Supreme Court decide?

The state’s top court ruled that someone can be held liable in a wrongful-death lawsuit over the destruction of a frozen embryo, affording the fertilized egg the same rights as a person.

In its ruling, the justices said that the state had long recognized that “unborn children are ‘children.’” On Friday, they said that framing extended to frozen embryos.

“It applies to all children, born and unborn, without limitation,” the court wrote, overruling a lower court that had dismissed the case because it said the embryos did not qualify as people.

The defense noted, according to the ruling, that the plaintiffs signed contracts in which they agreed to either automatically destroy or donate to researchers embryos frozen for longer than five years or, in one case, allow “abnormal embryos” to be experimented on and then discarded.

The state Supreme Court said that since the trial court did not consider that argument, it would not resolve that issue. It said the lower court could still review that defense.

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How did the case reach the Alabama Supreme Court?

The case was brought by three couples who went through the IVF process and stored fertilized eggs at the Center for Reproductive Medicine, a fertility clinic inside a hospital in Mobile, Ala.

Between 2013 and 2016, doctors helped the three couples create several embryos that led to the birth of healthy babies. Each of the couples also signed contracts to have remaining embryos kept in the center’s cryogenic nursery, where the fertilized eggs remained until 2020.

That year, a hospital patient entered the cryogenic nursery and removed several embryos from their storage container. The frozen embryos were stored at subzero temperatures, freeze-burning the patient’s hand and causing the patient to drop the embryos on the floor, destroying them.

The three couples brought two suits - two of the couples filed jointly - under the Wrongful Death of a Minor Act, cases that eventually went to trial and were dismissed in 2022. That court said that “in vitro embryos involved in this case do not fit within the definition of a ‘person’ or ‘child,’ and it therefore held that their loss could not give rise to a wrongful-death claim.”

The three couples appealed the rulings dismissing the cases, and the Alabama Supreme Court reviewed them together.

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How will the ruling affect IVF procedures in Alabama?

The Alabama Supreme Court ruling has not outlawed IVF or made it illegal, said Collura, the head of Resolve.

“The immediate impact is that clinics are analyzing each step of the process with a medical and legal framework in mind,” she said. “And determining if any of the steps are in violation of Alabama statutes.”

Collura said the ruling created more questions than answers: “If a group of cells is a person, can you freeze them? Can you do genetic testing on them? What if you transfer an embryo to a person and she doesn’t get pregnant?”

Patients wanting to start IVF, those mid-procedure and those with frozen embryos are all asking questions that no one has answers to right now, she said.

“Remember, the court gave us this ruling without guidance or a road map,” she said. “So now clinics will take some time to figure out if they are comfortable taking steps they were taking last week.”

In a brief filed by the Medical Association of the State of Alabama while the case was underway, the organization argued that the wrongful-death liability could increase the costs of IVF and result in fertility clinics shutting down and specialists moving across state lines.

In the only full dissent in Friday’s ruling, Justice Greg Cook made a similar prediction, writing, “The main opinion’s holding will mean that the creation of frozen embryos will end in Alabama.” Cook wrote that medical providers would discontinue services for creating and maintaining frozen embryos after learning that they have to maintain the frozen embryos forever or risk a wrongful-death claim for punitive damages.

The majority said in its ruling that it was up to the state legislature to consider “policy-focused” arguments, declining to weigh in on that matter.

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How does it affect the national debate around reproductive rights?

The ruling is the first of its kind, as no other state’s top court has ruled that frozen embryos are people in a wrongful-death lawsuit.

Abortion rights advocates said they had feared that such a ruling was the “natural” next step following the fall of Roe v. Wade.

“The foundation for this has long been laid, and we’re now seeing the real world implications of that sort of theoretical framing of ‘life,’” said Dana Sussman, the deputy executive director of Pregnancy Justice, a nonprofit focusing on the rights of pregnant people.

Antiabortion groups applauded the ruling, saying the decision was “backed up by basic science,” and called on other states to follow suit.

“Laws that allow the homicide of children in the womb through abortion violence violate equal protection and are unconstitutional,” said Lila Rose, founder of the antiabortion group Live Action. “The Alabama Supreme Court decision should be applauded and used as a model of honest and prudential jurisprudence nationwide.”

Sussman and Collura said they weren’t aware of similar cases making their way through other states’ top courts or bills advancing in statehouses. But they noted that what happens in one state can affect what happens in another.

“For many years, many states have tried to define a fertilized egg as a person, but such legislation did not make it far,” Collura said. “Now we have a case where a supreme court has declared them people, and this will change things.”

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