How Alabama’s Frozen Embryo Ruling Could Impact IVF Treatments

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The Alabama Supreme Court ruled that all frozen embryos are “children” under the state’s Wrongful Death of a Minor Act. Joe Sohm/Visions of America/Universal Images Group via Getty Images
  • The Alabama Supreme Court ruled that frozen embryos conceived via IVF are considered “children” under the Wrongful Death of a Minor Act.
  • The Feb. 16 ruling reverses a decision by a lower court that dismissed a wrongful death lawsuit involving three couples undergoing fertility treatments.
  • The Court’s ruling could have serious ethical consequences for fertility patients in Alabama, which has a total abortion ban.
  • Anti-abortion activists and health experts have warned about the implications for fertility patients post-Roe.

The Alabama Supreme Court ruled Friday that frozen embryos conceived via in vitro fertilization (IVF) could be considered people potentially complicating access to IVF treatment in the state in the future.

The decision could have major implications for people undergoing IVF treatments in Alabama, where abortions are virtually completely banned.

The February 16 ruling reversed Mobile County Circuit Court Judge Jill Parrish’s decision to dismiss a “wrongful death” lawsuit between an Alabama fertility clinic and hospital and three couples undergoing fertility treatments.

“Man’s creation in God’s image is the basis of the general prohibition on the intentional taking of human life,” wrote Associate Justice Jay Mitchell, quoting a passage from Genesis.

“Therefore to kill man is to deface God’s image, and so injury is not only done to man, but also to God… Finally, the doctrine of the sanctity of life is rooted in the Sixth Commandment: “You shall not murder,” the Justice continued.

In a statement to Healthline, Kelly Baden, vice president for public policy at the Guttmacher Institute, called the ruling “radical.”

“The Alabama ruling that embryos have the same legal rights as a person shows that our fundamental rights and bodily autonomy have been upended by the overturning of Roe v. Wade,” Baden said.

“This radical concept of personhood has long been championed by the anti-abortion movement and is now one step closer to becoming reality. The potential impacts are vast — your ability to build a family, continue a healthy pregnancy, or choose abortion are all connected; judicial and legislative attacks on one impact all.”

The Alabama Supreme Court ruling will allow the couples — James LePage and Emily LePage, William Tripp Fonde and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne — to sue the Center for Reproductive Medicine and the Mobile Infirmary Association for the death of their embryos under Alabama’s Wrongful Death of a Minor Act and seek damages for the loss of their frozen embryos.

The couples’ embryos were accidentally destroyed after a hospital patient wandered into the cryonursery where they were being preserved. The patient removed the embryos from the freezer and dropped them on the floor after they freeze-burned their hand, according to the ruling.

“The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed,” the Alabama justice wrote.

“Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”

Patients undergoing IVF may produce multiple viable embryos depending on how many eggs are successfully fertilized with sperm. The viable embryos are frozen until the patient undergoes implantation.

A patient only needs one successful embryo transfer to become pregnant but may choose to freeze any remaining embryos for subsequent pregnancies.

Patients have medical autonomy over their embryos, meaning they have the right to decide whether to continue storing the embryos, discard them, or donate them to research.

The Medical Association of the State of Alabama recently warned about the consequences for fertility treatments that could result if the state’s wrongful death statute was upheld in the lawsuit.

“The potential detrimental impact on IVF treatment in Alabama cannot be overstated,” according to a brief filed by the medical group.

“The increased exposure to wrongful death liability as advocated by the Appellants would – at best – substantially increase the costs associated with IVF. More ominously, the increased risk of legal exposure might result in Alabama’s fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine,” the group wrote.

Alabama’s near-total abortion ban took effect after the U.S. Supreme Court overturned Roe v. Wade in June 2022.

If other states with strict abortion bans were to follow suit and declare embryos are legally people, this could have ethical implications for fertility patients and their cryogenically stored embryos.

Pro-choice advocates and health experts have expressed concern about potential implications for fertility treatments and frozen embryos since those who are anti-abortion say that life begins at conception.

Baden said that anti-abortion groups will continue to try and restrict reproductive rights.

“We’ve already seen that overturning Roe was not the end goal of the anti-abortion movement and their allies in legislatures and courts,” Baden said.

“Now, the devastating consequences are becoming clearer and touch on every aspect of our reproductive lives — whether and how someone can become pregnant using IVF, whether they can prevent pregnancy using hormonal contraception, whether they can continue a pregnancy when facing obstetric complications in a state hostile to abortion rights, and whether they can choose abortion,” she added.

To help protect the statutory rights of fertility patients and physicians, democrats Sen. Tammy Duckworth of Illinois and Rep. Susan Wild of Pennsylvania recently introduced the Access to Family Building Act of 2024.

The Alabama Supreme Court recently ruled that all frozen embryos are people under the state’s Wrongful Death of a Minor Act.

The ruling reversed a decision by a lower court judge that dismissed a wrongful death lawsuit between three couples, a fertility clinic, and a hospital. The couples’ embryos were destroyed when a patient wandered into the cryonursery and dropped them on the floor.

The Court’s ruling could have major implications for fertility patients in Alabama and elsewhere if other states were to follow suit. Health experts and pro-choice lobbyists are working hard to protect these rights.

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Publish date : 2024-02-21 00:35:11

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