Shock, anger, confusion grip Alabama after court ruling on embryos
Alabama doctors are puzzled over whether they will have to make changes to in vitro fertilization procedures. Couples have crammed into online support groups wondering if they should transfer frozen embryos out of state. And attorneys are warning that divorce settlements that call for frozen embryos to be destroyed may now be void.
Throughout Alabama, there is widespread shock, anger and confusion over how to proceed after the state Supreme Court ruled Friday that frozen embryos are people, a potentially far-reaching decision that could upend women’s reproductive health care in a state that already has one of the nation’s strictest abortion laws.
“Women who actually know what happened, they feel under attack and almost powerless,” said AshLeigh Meyer Dunham, a Birmingham mother who conceived a child through in vitro fertilization and is a partner in a law firm that specializes in assisted reproductive technology cases. “First you had the Dobbs decision and now this. What does this even mean?”
The state Supreme Court decision signals a new chapter in America’s fight over reproductive rights and marks another blow to women’s rights groups that expect similar challenges in other conservative states. The ruling is limited to Alabama, but legal experts say it could embolden the “personhood movement,” which asserts that unborn children should be granted legal rights beginning at conception.
The decision was decried Tuesday by the White House.
“This 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,” White House press secretary Karine Jean-Pierre told reporters traveling with President Biden.
Interviews with physicians and attorneys in Alabama, as well as advocates on both sides of the issue nationwide, paint a confusing path forward for IVF clinics trying to interpret the ramifications of the ruling. Although physicians hope the Alabama legislature will limit the impacts of the ruling, they warn that the most dire consequence of the ruling is that some Alabama IVF clinics may be forced to suspend their operations.
And even if they remain operational, physicians say patients could have to endure longer — and more costly — treatments to try to achieve a pregnancy.
The Alabama Supreme Court ruled on Feb. 16 that frozen embryos are people and someone can be held liable for destroying them. (Video: The Washington Post)
“Under the current Alabama ruling, patients nor physicians nor IVF labs are going to be willing to have frozen embryos,” said Mamie McLean, a physician at one of the state’s largest fertility clinics, Alabama Fertility Specialists. “So if we are faced with two potential embryos that need to be transferred, modern practice would say transfer one and freeze one. But under this ruling, it may not be safe to freeze embryos so we will be forced to transfer two embryos … which increases the lifelong health risks to both mothers and children.”
The challenge to IVF in Alabama comes as the number of pregnancies conceived through the procedure has soared over the past decade. According to the Centers for Disease Control and Prevention, 97,128 infants were born nationwide via IVF in 2021, the last year for which statistics were available. There are 453 IVF clinics nationwide, and every state except Wyoming has at least one clinic.
Jennifer Lincoln, a board certified OB/GYN who practices in Portland, Ore., said she doesn’t think people understand how “scary” the Alabama ruling is. She raised a common scenario: A patient undergoing IVF has an egg retrieval that leads to the creation of multiple embryos, with the hope that at least one turns into a live birth. If successful, the remaining embryos remain frozen for possible future use — but not all may be used.
“If someone has five embryos left and they decide not to have any more kids and want those embryos destroyed — and someone in that physician’s office hears that, could [the doctor] be criminalized for being an accomplice in a crime?” Lincoln asked.
The Alabama ruling is the first to attribute human rights to a developing organism at such an early stage following conception. The ruling states that “unborn children are ‘children,’” and that frozen embryos should be afforded the same protection as babies under the Wrongful Death of a Minor Act.
Lila Rose, president and founder of Live Action, a national antiabortion organization, heralded the court for showing “moral clarity” in ruling that the unborn deserve the same rights as children.
“You have children being created in petri dishes at will and then destroyed at will and used for experimentation,” Rose said. “It’s not acceptable to leave human beings on ice. It’s not acceptable to destroy them. These are not commodities.”
Katie O’Connor, director of federal abortion policy at the National Women’s Law Center, says the ruling will immediately disrupt reproductive care in Alabama because hospitals and doctors will be unclear about what they can and can’t do in terms of fertility treatments.
“Doctors are going to decide that these questions surrounding fertility treatments are not easily answerable and that the work is just too risky to do with the state,” said O’Connor, who predicted the Alabama decision will probably inspire antiabortion activists to push for similar protections in other states.
McLean, the Alabama doctor, cautions she is not yet ready to accept “the worst case scenario” that would result in clinics closing and patients being forced to receive treatment in other states. She expects Alabama’s medical community will be able to work with legislators and judges to carve out a middle ground that enables IVF treatments to continue.
Still, McLean blasted the ruling, saying it was not “grounded in medicine.”
“Unfortunately, this has become a political debate, but in reality this is a medical debate, and how we are able to practice medical care as physicians,” McLean said.
If no concessions to the court ruling are made, McLean said it could cost Alabama women more money because some doctors might only be willing to retrieve a limited number of eggs. In a typical IVF cycle, doctors stimulate the ovaries to produce as many mature eggs as possible. Those eggs are then fertilized in a lab and, if successful, turn into embryos. Multiple embryos are often needed to produce a single live birth.
“If we are to say, ‘Okay, I can fertilize two eggs instead of 10,’ we may not end up with any embryos or end up with an unhealthy embryo, so patients may need multiple egg retrievals to achieve the same pregnancy rate that we were trying to achieve with one retrieval,” McLean said. “Multiple attempts at retrieval will cost more money.”
McLean added she worries insurance companies could balk at those costs. She also worries that medical malpractice costs could go up and that it will become harder to attract physicians to the state.
“So, yes, there is a scenario where this closes fertility clinics in the state,” McLean said. “But we remain hopeful and absolutely expect a different path forward.”
Dunham, the Birmingham attorney, is even more pessimistic about the implications of the ruling. She noted that an online infertility support group she is a part of is already buzzing with discussion from Alabama couples about how to ship their frozen embryos out of state. It costs about $1,500 to mail the embryos to labs in Georgia or another state, but Dunham noted that many labs elsewhere are already facing strains on their storage capacities.
On Tuesday, Dunham said she was also fielding questions from divorce attorneys about whether settlement agreements that call for the destruction of a couple’s embryos can remain valid. The decision could also have implications for genetic testing of embryos, she said. Many patients rely on screening embryos to identify and prevent passing along genetic conditions.
Such testing can also identify which embryos have a normal number of chromosomes and are less likely to result in a miscarriage.
“If someone has a recurrent miscarriage, it could be due to a genetic disorder,” Dunham said. “You end up creating multiple embryos, and they usually genetically test to see which one has the best chance of making it.
“But if you say these are children, and they can’t be destroyed — we are looking at maybe not being able to test it, because it could hurt the embryo,” she said.
Even outside of Alabama, the ruling is causing an additional stress for IVF patients already undergoing an anxiety-inducing process.
Audra Stark, 40, has an 8-month-old daughter she conceived through IVF and calls it one of the most “mentally traumatic experiences” of her life. The Virginia mother went through the process three years ago after her physician told her she wasn’t able to ovulate and ended up freezing four embryos in hopes of growing her family.
When she heard about the Alabama news, Stark said she immediately wondered which state would follow.
“It’s scary because I think it’s going to be like dominoes falling,” Stark said. “I think it’s going to be like abortion restrictions where we’re going to see huge swaths of the country without access to these services.”
Dan Rosenzweig-Ziff contributed to this report."
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