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Clinics Halt IVF Treatment After Alabama's Top Court Ruled Frozen Embryos Are "Children"

The court predicted this outcome in its dissenting opinion.

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On Feb. 16, the Alabama Supreme Court revised a lower court’s decision and will now allow a couple to sue a Mobile-based fertility clinic for the accidental destruction of two frozen embryos under a wrongful death suit. Effectively, the state has ruled that frozen embryos are legal persons. Legal analysts and activists immediately predicted significant consequences for the future of IVF and indeed, within a week after the ruling, at east two care providers — the University of Alabama at Birmingham health system and Alabama Fertility — have paused IVF procedures fearing similar lawsuits or even criminal prosecution. The Medical Association of the State of Alabama told CNN that other providers in the state will likely follow suit.

The 7-2 decision hinged primarily on a combination of the state’s 2019 constitutional amendment that made it state policy to “recognize and support the sanctity of unborn life and the rights of unborn children.” The court ruled that this amendment means that the embryos were protected under 1872’s Wrongful Death of a Minor Act. “Unborn children are ‘children’ under the Act,” wrote Justice Jay Mitchell in the Court’s majority opinion, “without exception based on developmental stage, physical location, or any other ancillary characteristics.”

Alabama is one of 27 states that recognize some degree of “fetal personhood,” at least seven states that recognize life as beginning at fertilization or conception. Extending legal “personhood” to zygotes, embryos, and fetuses has been a strategy, and goal, within the anti-abortion movement since the Roe v. Wade ruling in 1973. This strategy, however, could be disastrous for those attempting to build their families through in-vitro fertilization (IVF).

IVF, in which egg and sperm are joined outside of the human body, works by harvesting a clutch of eggs, fertilizing them, and then implanting some of the ensuing embryos into a uterus. In many instances, more embryos are created than can be safely implanted. Those embryos are often frozen, offering perspective parents multiple (frequently necessary) opportunities to become pregnant off of one round of egg harvesting. Superfluous embryos can either be kept in perpetual storage or destroyed. This new ruling, however, throws into question whether this standard procedure would be permissible moving forward, particularly in light of a concurring but separate opinion penned by Chief Justice Tom Parker.

“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself,” he wrote. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

Justice Greg Cook foresaw a negative effect on IVF and hopeful families while ruling on this case, noting in his dissent, “The main opinion’s holding will mean that the creation of frozen embryos will end in Alabama. No rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.”

And, indeed, University of Alabama at Birmingham currently supports the IVF process up to egg retrieval, but fertilization and embryo development are currently on hold until the full impact of this ruling can be legally analyzed. Alabama Fertility is working with patients to try to find solutions. Regardless of the outcome in this particular facility, experts agree that even if IVF treatments can or will legally move forward in the state, perpetually storing embryos may prove financially untenable for many, their ability to pursue family building via IVF may be similarly impeded. Clinics and healthcare providers may also shy away from any procedure that could lead to damaging an embryo or fertilized egg — even one likely to result in a desired pregnancy — for fear of being help liable for punitive damages. Some may choose to leave Alabama altogether.

“We’re going to have a situation where people being able to get care for their infertility is going to be so much harder in Alabama, and not because we’re putting more protections in place, because the way the court has decided the status of a fertilized egg,” Barbara Collura, CEO of RESOLVE: The National Infertility Association, told 19thNews. She continued, “The rights of those embryos now are no longer in the hands of the people who created them.”

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