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Alabama Supreme Court ruling on embryos creates possibility of legislators limiting fertility treatments, experts say

Several Northeastern experts said Alabama’s decision to consider embryos children in a wrongful death suit could have ‘downstream’ effect on IVF.

An in vitro fertilization embryologist works on a petri dish.
An in vitro fertilization embryologist works at a London clinic. A recent Alabama ruling that said embryos count as children in some circumstances could impact IVF. AP Photo/Sang Tan

The Alabama Supreme Court recently ruled that frozen embryos count as children in certain scenarios, a decision that Northeastern experts say could severely limit fertility treatments.

The ruling only concerns negligence cases that can be brought against fertility clinics when it comes to embryo destruction, but the concern now for IVF clinics is whether the accidental destruction of an embryo could set them up for liability or what their responsibility is for embryos that are frozen and left unused. 

While the ruling is limited in its scope, Katherine Kraschel, an assistant professor of law and health sciences at Northeastern University, said it can provide a path for other states to enact legislation creating similar thresholds for personhood that could severely limit the standard of care for reproductive health.

“They provide a roadmap in the decision that is familiar in some ways to the game plan that anti-abortion advocates used in designing targeted restrictions on abortion providers,” Kraschel said. “In some ways, what the opinion does, in addition to the actual precedental force, is provide a game plan for legislators to take up and severely restrict and change standards of care in fertility medicine in ways that would make it less accessible, more expensive, less safe for patients. It’s deeply concerning.”

The University of Alabama at Birmingham health system said in a statement that fertilization and embryo development are on pause “for now” as it evaluates whether doctors or patients could face legal consequences for undergoing IVF treatments and discarding any embryos.

Samantha Garbers, a teaching professor of health sciences at Northeastern University, predicts the effects of this ruling could extend beyond UAB and Alabama. She says other groups or organizations may restrict services out of fear of running afoul of unclear rulings or regulations.

“It’s going to have unintended downstream consequences,” she added. “This is a state that already has the strictest abortion laws. In an effort to … settle one lawsuit for some families,
(Alabama) has unleashed a whole set of unintended and still unfolding consequences for reproductive health.”

Kraschel said that the current standard of care is to retrieve as many eggs as possible during a cycle and create more embryos than needed to increase the chances of a successful implantation. If there were laws limiting the number of embryos created to avoid destroying extras, it would require patients to go through more medicated cycles, costing them more time and money and putting them through more medical treatments.

The Centers for Disease Control and Prevention estimates that one in five married women between the ages of 15 and 49 struggle with infertility, meaning this issue can have far-reaching effects, said Garers. The ruling also affects same-sex couples and people using preimplantation genetic diagnosis as part of IVF to test for disorders that may affect the fetus or baby.

“IVF is a critical service — not just for people not necessarily experiencing infertility,” Garbers said. “It’s going to affect people with inherited conditions who want to reduce the risk of having a child with significant health issues or early death.”

The court case came about from an incident that occurred in Mobile, Alabama, in December 2020 when a patient wandered out of their room and into Mobile Infirmary Medical Center’s fertility clinic. The patient then supposedly removed five embryos and dropped them after being burned by subzero temperatures, causing the embryos to be destroyed. The three couples involved filed a wrongful death suit against the clinic the following year, according to a local Alabama news station.

A lower court previously ruled that embryos did not count as children under the Wrongful Death of a Minor Act, but the Alabama Supreme Court ruled against it, citing a constitutional amendment voters adopted in 2018 granting fetuses (but not embryos) personhood. 

The lack of guidance and legislation raises questions for these physicians about the potential legal consequences of their actions, said Martha Davis, distinguished professor of law at Northeastern University. 

“Within the absence of any detailed guidance from the legislature, the clinics running these programs … don’t know whether freezing an embryo means that then they are forever responsible for it and that they might be subject to not just to wrongful death, but murder charges,” Davis said. “The problem with having courts (decide) in this way is that they can’t provide this kind of detailed information that is necessary as a practical matter, for clinics to know how to handle this.”

While this ruling is limited to Alabama, Davis said it’s part of a larger social movement to limit abortion that’s happening around the country.

“It doesn’t have so much to do with the legal reasoning,” Davis said. “It has to do with the strength of the social movement. That’s the same playbook that we’ve seen with respect to abortion. One of the concurrences was very steeped in religious language and that is the agenda of conservative religious groups. That’s something that transcends state lines. It seems like a very peculiar agenda for them because these are people that are trying to have children and it puts a great burden on them as they’re trying to do that.”