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I Can’t Stop Thinking About The People In Alabama Who Lost Their Embryos

This week’s ruling will cause more suffering, not less. It doesn't even erase their suffering.

by Kate Suddes

In a bombshell decision last week, the Alabama Supreme Court ruled that embryos are legal persons or “children” and therefore their destruction allows for the mother, father, or “personal representative” (the term Alabama uses for the executor of a deceased person’s estate) to pursue a wrongful death suit. In a 7-2 ruling, the court leaned on a 2019 constitutional amendment that mandates the state to “recognize and support the sanctity of unborn life and the rights of unborn children.” This led them to conclude that under Alabama’s 1872 Wrongful Death of a Minor Act, the embryos were protected under the law.

By now you've heard every possible opinion about the Alabama Supreme Court Ruling. The ramifications for people seeking infertility treatment are dire, terrifying, and still not fully known. Abortion is currently illegal at any stage in Alabama with limited exceptions, and the state is also one of 27 to recognize “fetal personhood,” but reproductive rights activists are worried this case could be a further boost to pursuing embryonic and fetal personhood at federal levels and in other states.

It’s easy to get swept up in the formality and generality of the law, this faceless force that demands our adherence. It’s easy to forget it usually begins with a person, a hurt, a devastation. I keep returning to where this case began, though, with the three couples who went through IVF treatment at an Alabama medical center. Each of these families lost embryos after another patient wandered into the cryogenic storage room through an unsecured doorway and, by accident, destroyed them.

That’s a word in this story that I’ve been thinking about a lot. Not unborn child, or children or persons. But accident. Because unequivocally, this case began with a horrific, infuriating, and devastating accident. It cannot be undone or fixed; there is no making anyone whole again because the potential of those embryos to transform into life has been destroyed.

I feel tremendous empathy for those parents. I have a starting lineup of embryos, too. There are five of them and they live across the country from me now. I’ve thought about this scenario often. What would I do — how would I feel — if they were lost in a fire or flood? I thought about it nonstop in the days leading up to the embryo transfer that would turn into my youngest daughter. What if it’s the wrong embryo? What if it’s a “bad” embryo? What if the wrong egg was fertilized with the right sperm or vice versa? What if we go through every single one and never have another living child?

But this decision causes more suffering, not less. It doesn't even erase their suffering.

The embryos represent potential, which means there are endless possibilities you can both hope for and dread. You can torture yourself or wistfully daydream about all the ways it could go well or poorly. But these possible endings are wedded and inseparable. Everything is an unlit match until it isn’t. The fire can lead to warmth or destruction. We accept the risks and rewards. We do it every day.

Often when I feel angry, my therapist asks me to go below that. What is the emotion underneath? There is a reason she has to remind me. Rage is invigorating, it burns hot through energy and hours and dazzles with its power to distract. It is a potent drug that some people cling to forever. But it’s a raft, untethered and dangerous. And letting go of it means contending with the ocean of sorrow beneath it — more daunting and seemingly endless. When you let go of the outrage, there is nothing to cling to. On its best days, the ocean of sadness feels like floating. But at its worst, it feels like drowning. And it’s far more vast and enduring.

What I suspect is that these three couples feel deep rage. And that makes sense to me; I can imagine it because I know what it feels like to arrive at IVF after years of unexplained infertility and loss. What happened to them — to their embryos — in that clinic is wildly unfair and irresponsible and they should be compensated and validated. But this decision is an overcorrection; it will cause more suffering, not less. It doesn't even erase their suffering. It answers an injustice with more injustice — it is a mismatched response, an answer to a different question.

And because I have been there, I also can’t stop thinking how scary this is for all the people currently going through IVF — the people who will attempt multiple rounds of embryo transfer, the people whose treatment will be paused, the people who will miscarry. I also can’t stop thinking about the people who would have wanted to store their embryos ad infinitum, to let their plans for starting families change along with them, who will have to make quicker decisions now. At the time of this writing, the University of Alabama at Birmingham's Division of Reproductive Endocrinology has paused all IVF treatments. I just can’t believe that the original families wanted this outcome.

When the news cycle turns over and the rage burns off, if it does eventually for them, they’ll need a gentle place to grieve.

I look at my daughter with wonder some days and imagine her potential peers, frozen embryos in that group from which she came. I thought for a long time that we would have more kids; I’m sure they would be equally spectacular, each with their own set of quirks, talents, and imperfections. If I had all the time in the world and many more lifetimes, I’d want to know and parent them all. But our lives went a different way and for a variety of reasons, we have two living children and the door has closed. I wrestle with it often. But what I cannot imagine is being mandated to destroy them or transfer them to give them a shot at life. I love them. I’m grateful to them for their potential, but they’re not my living children. They are an auspicious glimmer of promise. It is not clear-cut; it’s slippery, nuanced, and gray. And I think a big part of our life’s work is accepting that we live in that messy space.

Nobody can bring those embryos back. Not this Supreme Court decision, not God, nor a constitutional amendment. This very real tragedy is already lost to the fear and anger this will cause so many people — other people in their position. Still, I hope they are financially compensated and given another shot at IVF, should they want to pursue it. I hope that somebody at this clinic sat with these couples, held their hands, and cried with them. Offered them the sincerest of apologies and condolences for this terrible mistake. I want them to feel seen in their sorrow. (Might this kind of compassion have stopped them from pursuing the case?)

Because when the news cycle turns over and the rage burns off, if it does eventually for them, they’ll need a gentle place to grieve. They will need this regardless of what happens to the law in Alabama, or reproductive rights across the country. And that is far longer and harder work. It’s work that must be done in the messy gray area, I want to tell them, where there is little clarity and too much uncertainty and suffering. But I also know that when you string enough time together, there can be light found, too.

Kate Suddes is trying to break your heart. Her writing has appeared in Cup of Jo, Romper, HuffPost, NAILED Magazine, the winnow, Ravishly, Human Parts, and The Manifest-Station. Kate is currently at work on her first book. She lives in New Haven.