On February 16, 2024, the nation was rocked by the Alabama Supreme Court’s decision to declare frozen embryos as children. As a result, many fertility facilities in Alabama halted operations due to confusion as to what this would mean for IVF treatments.
IVF, short for in vitro fertilization, is a process in which “multiple eggs are harvested from a person’s ovaries, fertilized with sperm externally, and implanted in the uterus to create a pregnancy,” according to NYU Langone Health. With about 2% of the U.S. population conceiving children via IVF, it is an effective treatment for couples experiencing infertility issues to achieve pregnancy. A pregnancy can be detected about nine days after a blastocyst embryo transfer is finished.
Often with the IVF treatment an excess amount of embryos are created that cannot be implanted into the uterus in one cycle. This commonly results in embryos being cryopreserved, or frozen for future use, donation, or destruction.
However, with the recent Alabama Supreme Court ruling, there is fear that doctors in Alabama could be held criminally liable for wrongful death if they destroy frozen embryos.
The ruling came about as a result of two lawsuits under Alabama’s Wrongful Death of a Minor Act that were filed in December 2020 by three sets of parents. They claimed that a patient at Mobile Infirmary entered the fertility clinic through an “unsecured doorway” and took many cryopreserved embryos out of the storage room.
The embryos were then dropped to the floor, destroying them in the process, after the patient’s hand was exposed to dangerously low temperatures during the embryo removal procedure resulting in freeze-burning.
A trial court initially rejected the parents’ lawsuit and ruled that the frozen embryos did not align with the description of a person or child.
However, the Alabama Supreme Court disagreed stating that, “When it comes to the Wrongful Death of a Minor Act, that means coming down on the side of including, rather than excluding, children who have not yet been born.”
Stemming from both of these lawsuits, the State Supreme Court decided “embryos are children, no matter if they’re within or out of a uterus, and those who destroy them can be held liable for wrongful death.”
Many politicians had a lot to say following the States Supreme Court’s decision declaring that embryos are children.
Karine Jeane Pierre, White House Press Secretary, released a statement stating, “This dangerous decision would not be possible without the Dobbs ruling. Republican politicians wiped away a nearly 50-year right and now we’re seeing the devastating consequences. Women are being sent away from hospitals to get sicker before they can be treated and now Alabama women who desperately want a family are unable to get the care they need to conceive. Time and again, Republican politicians have proven that they cannot be trusted when it comes to women’s reproductive health.”
President Biden discussed abortion and fertility treatment accessibility in the 2024 State of the Union Address. President Biden shared Latorya Beasley’s experience with the recent shutdown of IVF treatments in Alabama where she has to wait to conceive another child as a result. He exclaimed, “Guarantee the right to IVF nationwide!”
The Alabama Supreme Court, which has all Republican elected judges, has caused Republicans nationwide to frantically try to contain the fallout from the decision on February 16.
Former President Donald Trump commented in a public statement, “We want to make it easier for mothers and fathers to have babies not harder you know that… that includes supporting the availability of fertility treatments like IVF in every state in America.”
Republican governors Brian Kemp of Georgia, Bill Lee of Tennessee, and Chris Sununu of New Hampshire are all in support of IVF services despite advocating for the ban on abortion in their states, limiting women’s reproductive rights as result.
At the POLITICO Governors Summit, Governor Kemp stated, “You have a lot of people out there in this country that they wouldn’t have children if it weren’t for that.”
Republicans are urging the state legislature to provide an immediate solution to maintain the availability of IVF services in Alabama.
On March 7, 2024, Alabama Governor Kay Ivey passed a law aimed at protecting IVF after the state’s court decision was proposed which was passed by both chambers of the state’s Republican-controlled legislature. This would shield IVF practitioners from both criminal prosecutions and civil lawsuits. Additionally, a request to rehear the case was brought up by the defendants in the lawsuits, the Center for Reproductive Medicine, and the Mobile Infirmary which was where IVF treatment services were paused. Ivey states, “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.”
