Alabama’s Landmark Ruling on IVF: What it Entails, and What to Make of it
Montgomery, Alabama. February 16th, 2024.
The Alabama Supreme Court rules that frozen embryos created through in vitro fertilization (IVF) can, under state law, be deemed children. How did this ruling come to be established, and what does it mean for the future of Alabama’s fertility-related treatments and resources?
This ruling was catalyzed by the plaintiffs: three Alabamian couples who issued a pair of wrongful death cases. Each of the couples went to a fertility clinic operated by the Center for Reproductive Medicine of Alabama to undergo IVF treatments. Each of the couples successfully became pregnant through IVF and conceived healthy babies. The Center for Reproductive Medicine froze the additional unused embryos produced by the couples. In December 2020, some of these cryogenically-frozen embryos were accidentally destroyed, triggering the plaintiffs to file wrongful death cases.
The couples filed a lawsuit against the hospital and clinic under the Wrongful Death of a Minor Act, a statute in Alabama dating back to 1872. Initially, this case was dismissed. The presiding judge declared that embryos in vitro are not considered children or people. Thus, the plaintiffs could not bring any wrongdoing to the clinic and hospital under the Wrongful Death of a Minor Act, which necessarily involves the situation of a human child experiencing a wrongful death. This dismissal was then appealed and brought to the Alabama Supreme Court. The Supreme Court disagreed with the case’s initial dismissal, stating that the Wrongful Death of a Minor Act does apply in this case. This means that the Alabama Supreme Court determined that in vitro embryos — including those cryogenically-frozen with IVF — have personhood, and are human. The presiding Alabama Supreme Court Justice, Republican Jay Mitchell, stated this: “Unborn children are ‘children’...without exceptions based on developmental stage, physical location, or any other ancillary characteristics.” It is moreover important to recognize that the ruling was undergone in an all-Republican courthouse.
Before we continue, it is imperative that we understand the process and function of IVF treatment. According to the Mayo Clinic, IVF is “a complex series of procedures that can lead to a pregnancy.” It is most often used as an option for couples experiencing infertility to conceive their own biological child, as opposed to acquiring a child through adoption or through other means such as using a sperm donor. The process of IVF calls for mature eggs to be collected from a consenting party’s ovaries. The eggs are then brought to a sterile lab and fertilized by a second consenting party’s sperm. Finally, a procedure places one or more of the fertilized eggs — now called embryos — into a consenting party’s uterus. There, they continue to develop until the time of pregnancy. Couples who hope to conceive more than one child are able to freeze embryos for potential future use. The freezing of embryos also provides families with “peace of mind” if the embryo placed into the uterus ultimately does not result in pregnancy.
The recent ruling marks the first time in Alabama that the definition of a child, or a human, has been determined to apply to embryos that exist in medical labs. So what does this mean moving forward?
First, we can focus on the immediate aftermath. Within the first week of the February 16th ruling, two of Alabama’s eight fertility clinics paused their IVF treatments, with the next moves of the other six fertility clinics being largely unclear. The first of the clinics to pause IVF treatments in the wake of this ruling is the University of Alabama at Birmingham, Alabama’s biggest hospital. On February 23rd, days after temporarily pausing IVF treatments, the hospital announced that they will no longer be shipping any embryos out of state or to other facilities, revealing they have been unable to locate shipping companies that are “able and willing” to transport frozen embryos. The ruling has raised waves of concerns regarding the civil liberties and rights of fertility clinics, as well as potential criminal liability — for physicians, patients, and stakeholders — under the Wrongful Death of a Minor Act. If maintained, this ruling could mark a paradigm shift in Alabama’s IVF-related fertility care, with some speculators considering that clinics will entirely cease the process of cryogenically-freezing embryos for potential future use.
The ruling has also led to a number of knock-on effects concerning the patients and families currently utilizing IVF-related services in Alabama — especially for families working with the clinics who have temporarily paused their operations. At the University of Alabama at Birmingham, couples who were scheduled to undergo the final part of their IVF treatment–placing the embryos into a party’s uterus–cannot continue with their procedures. Similarly, couples in different places along their journeys with IVF treatments have had their next steps cut short mid-treatment. Some couples are now desperately seeking IVF treatments in neighboring states. For couples following strict timelines or couples who cannot afford to restart treatment with other companies, this change is simultaneously economically, temporally, and emotionally draining.
“Why does assigning blame and responsibility for this serious but isolated violation have to rob 25,000 people of the opportunity to have children?”
This key question is provided by David Sable, who argues that the recent ruling has been nothing short of devastating for couples who struggle with infertility. He explains that “12,500 couples or 25,000 people can have children with IVF who otherwise could not.” He moreover condemns the recent court ruling, calling it “bizarre” and “unthinkable” for its central role in bringing IVF-related treatments to a screeching halt amidst legal concerns. Sable furthermore comments on the modern-day safety of IVF conception. In the last 40 years, 12 million babies have been conceived through IVF in the USA, with Sable writing that the procedure is “more effective and safer than it has ever been.” He posits that “denying patients the opportunity to have a family with IVF is indefensible.” And it’s true: denying IVF treatments for couples who may otherwise experience chronic miscarriages, infertility, or pregnancy loss, can be both traumatizing and devastating — underlining the intrinsic harshness of this ruling.
Moreover, this ruling has severe implications for abortion-related legislature in Alabama. By deeming frozen embryos human, and using rhetoric such as “cryogenic nursery” and “extrauterine children,” the IVF ruling has “spotlighted the anti-abortion movement’s long game” by “giving embryos and fetuses legal and constitutional protections on par with those of the women carrying them,” argue APNews writers John Hanna and Geoff Mulvihill. Elisabeth Smith, state policy and advocacy director for the Center of Reproductive Rights — an organization with lobbies for abortion access — writes that the Ruling is “absolutely part of the antis’ long campaign to perpetuate abortion stigma and to normalize that an embryo and a fetus are equal to a living, breathing human being walking around.”
Although the February 16th ruling is not explicitly linked to abortion — and abortion is currently illegal within the state — there are mounting fears that rulings that are related to the limiting and restricting of abortion access will become more standardized in neighboring states, and within wider American culture. Thus, the implications of these individual rulings, no matter how minute or significant they may be, work to shape the potentially shattering future of access to abortion in America.
Cat Gao is a freshman at Brown University, planning on double concentrating in Philosophy and Literary Arts. She is a staff writer for the Brown Undergraduate Law Review and can be reached at cat_gao@brown.edu.
Maia Eng (is a sophomore at Brown University concentrating in International and Public Affairs. She is an editor for the Brown Undergraduate Law Review and can be contacted at maia_lourdes_eng@brown.edu.