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Alabama Halts IVF as State Supreme Court Ruling Sparks Fear and Confusion

The Alabama Supreme Court ruling that embryos are “extrauterine children” is already causing chaos for families.

A personnel of the laboratory of reproductive biology CECOS, the medically assisted procreation (PMA) unit of Tenon Hospital (Hopital Tenon AP - HP), performs an intra cytoplasmic sperm injection process (ICSI) in Paris on September 24, 2019.

When Brittany Stuart and her husband weren’t having success trying to conceive, they started to explore their options. From adoption to in vitro fertilization (IVF), they decided to embark on the process of the latter in the state of Alabama where they were living at the time.

Stuart describes herself as one of the “lucky” ones, even though the process of IVF is often long, emotionally and physically taxing, and expensive. It begins with ovarian stimulation, where a woman injects herself with hormones for weeks, all while attending various appointments for ultrasounds and bloodwork. Then, she has to go through the egg retrieval procedure. From there, each egg is fertilized by injecting a sperm into the egg, or mixing it with the egg in a petri dish. This fertilized egg is then transferred back to the uterus with the hope of creating a viable pregnancy.

It is common for multiple eggs to be transferred and fertilized because not all transferred embryos turn into viable pregnancies, just like how in a natural conception there’s never a guarantee that the fertilized egg will implant and turn into a fetus weeks later. First-time success rates for IVF often fall between 25 to 30 percent for most IVF patients. In that context, Stuart was lucky. Her first transfer succeeded. She became pregnant, and gave birth to her daughter in 2019.

Since then, she’s moved to Virginia. But she left two fertilized eggs in storage in Alabama to keep the option of having another child in the future. In 2022, she and her husband decided to give IVF a try again. This time the preparation process looked a bit differently. It included booking flights and hotels to go to Alabama for the procedure. Sadly, the transfer didn’t stick. Today, the 39-year-old has her last embryo in Alabama, and now she’s not even sure if and how she’ll be able to go through the process again. Instead, she’s fraught with questions since the Alabama Supreme Court said that frozen embryos are “extrauterine children.”

“Are they saying that I murdered a child?” Stuart in phone call with Salon, referring to how the second embryo transfer was unsuccessful. “My kid is a tax deduction. Is the embryo?”

IVF patients usually have a few options for their fertilized eggs that haven’t been transferred: to discard them, donate them to research, donate them to another couple, or keep them for a future pregnancy. When it comes to the IVF process, Stuart said, so much is out of your control. There is never guarantee that all the effort will result in a live infant.

“And one of the few things I could control, I thought, was what happens to those embryos,” she said. “I didn’t have any plans to transfer that last embryo tomorrow, but it’s being told that you can’t do something that’s just hard to swallow.”

The clinic she’s a patient at has currently paused transferring frozen embryos.

The Alabama Supreme Court ruling came from a pair of wrongful death cases brought by couples whose frozen embryos were destroyed in an accident at a fertility clinic. The majority opinion said that an 1872 statute allowing parents to sue for the wrongful death of a minor applies to “unborn children” — and that there is no exception for “extrauterine children,” such as frozen embryos. In Chief Justice Tom Parker’s concurring statement, he cited the Book of Genesis. It’s the first time Alabama applied legal personhood rights to an embryo outside of a pregnant person’s uterus. But the state has a history of trying to control reproductive rights in the state. Alabama has a near-total abortion ban with no exceptions for rape and incest.

Since the ruling, multiple fertility clinics in Alabama have paused IVF treatments due to concerns about how and if embryos can be discarded, and what happens if transfers fail. In an emailed statement to Salon, the University of Alabama at Birmingham’s (UAB) fertility clinic said they were “saddened” to pause IVF treatment and by how it will affect their patients. Infertility affects at least 10 to 15 percent of couples who want to get pregnant. It’s also often used as a means to have children for people who are in same-sex relationships.

“But we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments,” UAB said in a statement, noting that only IVF treatment is paused. “Everything through egg retrieval remains in place; egg fertilization and embryo development is paused.”

Dr. Daniel Stein, the consulting medical director WIN, the nation’s leading family-building and family well-being benefit company, told Salon via email that this ruling will certainly alter the practice of fertility medicine in Alabama, which is already in crisis due to a litany of factors.

“Fertility practices might be forced to stimulate far fewer eggs as a result, thereby dramatically lowering the chances of a successful outcome for thousands of couples,” he said. Lower success rates of IVF will force more couples to undergo more cycles, which not everyone will be able to afford. “Many couples would be unable to meet the rising costs and would remain childless; in a country with a diminishing birth rate, the economic effects of childlessness are potentially devastating.”

Betsy Campbell, chief engagement officer of RESOLVE: The National Infertility Association, told Salon she’s very worried about the impact this will have on families trying to conceive via IVF right now, adding that embryos are “microscopic cells” that cannot be seen “by the naked eye.” Saying that they are “live children,” she said, “flies in the face of everything we know about human reproduction.”

“If the embryo does not develop, will this now be considered wrongful death?” she asked. “Will families be facing criminal charges?”

Campbell said this decision is creating a lot of fear and confusion among the family-building community.

“We’re hearing from patients who are very scared, who might have frozen embryos already in storage or are concerned if they’ve lost control of their own embryos,” she said, adding this journey is already very difficult before adding in “this kind of legal quagmire.” “They’ve already gone through a lot, physically, emotionally, and financially, and then for everything to come to a halt is just crushing.”

Dr. Aimee Eyvazzadeh, a reproductive endocrinologist based in the San Francisco Bay Area, told Salon she’s feeling the impact in her practice in California. She’s received emails from patients in Alabama asking for her help.

“And I said ‘My doors are open, move your embryos immediately,’” she said. “You can still cycle and do IVF in other states.”

Her own patients in California have sent her emails expressing empathy for those being directly impacted in Alabama, and anger.

“It’s causing people a lot of stress when life is already stressful enough,” she said.

And then there are fears around not only what this means for the future of IVF in Alabama, but reproductive rights across the country. Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, emphasized this didn’t just happen because of the Alabama Supreme Court ruling — and it didn’t start with overturning Roe v. Wade, either.

“There has been a concerted effort in Alabama and elsewhere for years to give legal rights to embryos and fetuses,” Kolbi-Molinas said. “Extremist politicians see decisions like this as part of the building blocks to force the U.S. Supreme Court to eventually say that not only are states permitted to ban abortion, but if embryos and fetuses have legal rights the same way as people, then states must ban abortion.”

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