Alabama infertility clinic stops offering IVF, fearing prosecution

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The fertility clinic at the University of Alabama at Birmingham announced Wednesday it has stopped offering in vitro fertilization (IVF) procedures. Other clinics in the state may soon follow after the Alabama Supreme Court ruled last week that frozen embryos are "children" — entitled to the same legal protections as an infant or a third grader. 

The decision stemmed from a lawsuit filed by three couples who had sought IVF at "a fertility clinic operated by the Center for Reproductive Medicine" in Birmingham, Alabama. The treatments were successful and helped the parents conceive children. But, like many IVF treatments, they resulted in extra embryos. These embryos were frozen and stored at a facility in a local hospital. In 2020, there was a security breach in the hospital, and a patient entered the storage area and grabbed some of the embryos. The freezing temperatures burned the patient's hand, and the embryos were dropped, destroying them. 

There is a strong argument that these couples — who were interested in conceiving more children — were harmed due to the negligence of the hospital or clinic. But, instead of filing a simple negligence lawsuit, "[e]ach set of plaintiffs asserted claims under Alabama's Wrongful Death of a Minor Act." That law "allows parents of a deceased child to recover punitive damages for their child's death." 

It is a peculiar argument, considering that all three couples signed contracts allowing the clinic to destroy their embryos under various circumstances. But the Alabama Supreme Court ruled in the couples'' favor.  

In a 7-2 ruling, the Alabama Supreme Court found that the embryos were "extrauterine children," which it defined as "unborn children who are located outside of a biological uterus at the time they are killed." The court ruled that Alabama's "Wrongful Death of a Minor Act applies to all unborn children, regardless of their location." It found that considering a frozen embryo a "child" is a "natural, ordinary, commonly understood meaning" of the word. 

The court argues that the Alabama Constitution requires frozen embryos to be considered children, citing a 2022 amendment that "acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." That means, even if the Alabama legislature were to amend Alabama's Wrongful Death of a Minor Act, the Alabama Supreme Court could rule in the future that destroying an embryo constitutes murder. The Alabama Supreme Court explicitly leaves open that possibility. 

The majority on the Alabama Supreme Court cites Dobbs, the United States Supreme Court decision ending the constitutional right to an abortion, several times. The majority writes that "all members of this Court agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death." The majority is an extension of that belief, which is rooted in theology, not science. 

Alabama Chief Justice Tom Parker makes this explicit in a concurring opinion. Parker writes that the decision is grounded "theologically based view of the sanctity of life." Frozen embryos must be considered children, according to Parker, because "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." 

Of course, many Christians in Alabama and elsewhere disagree that standard IVF treatment — which often involves the loss of some embryos — is an affront to God. But now Parker and the other members of the court majority are imposing their specific religious beliefs on millions of women in Alabama. 

The criminalization of IVF

IVF is currently one of the most common assisted reproductive technologies used. About four in 10 adults say they’ve used or know someone who has used IVF or other fertility treatments, a 2023 Pew study found. The procedure – frequently used to treat infertility and certain genetic problems – involves removing eggs from the ovaries and combining them with collected sperm in a petri dish for fertilization. Since not every egg successfully fertilizes, doctors will typically fertilize multiple eggs at a time to increase the odds of a healthy embryo developing. 

Once the embryos are formed, doctors will test them for abnormalities and transfer one or two of the healthiest embryos to the uterus. The remaining embryos can be donated to a couple or individual, designated for scientific research, or discarded. Meanwhile, those who want to hold on to them for future family building or to try again can keep them frozen from “$350 to $1,000” a year. 

Alabama’s ruling, however, complicates these options. “If an embryo is a person, it's obviously not clear that it's permissible to donate that embryo for research, or to destroy it,” UC Davis Professor of Law Mary Ziegler told NPR. “It may not even be possible to create embryos you don't implant in a particular IVF cycle.” Some reproductive rights groups also worry that the ruling will be weaponized against those who experience failed embryo transfers. Others say the ruling could force people to keep their embryos frozen indefinitely, creating a financial burden.

Moreover, Parker opined that the U.S. should follow Europe in setting “a legal limit on the number of embryos transferred in a single cycle.” But limiting embryo transfers to one or two embryos at a time has been widely encouraged and practiced in the U.S. for years. If anything, experts worry the ruling will achieve the opposite effect: if freezing is no longer an option, doctors will be forced to transfer multiple embryos, thereby endangering the patient. 

In the ruling, Parker also lauded ethics standards in Australia and New Zealand, stipulating “that physicians usually make only one embryo at a time.” But this is incorrect, law professor Susan Crockin said. Nowhere in the cited Fertility Society of Australia and New Zealand’s Code of Practice is this listed as a guideline. According to Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, “[th]e goal is to actually create as many embryos as possible because that gives you the greatest chance at a pregnancy.” 

Parker also highlighted Italy’s decision in 2004 to ban the “cryopreservation of embryos.” But this was reversed in 2009 after the Italian Constitutional Court stated that freezing eggs “were a matter of good clinical practice.”

Trump allies praise Alabama's decision

Many of the anti-abortion groups celebrating the decision also have ties to former President Donald Trump. During his presidency, Trump, who has repeatedly described himself as the “most pro-life president in American history,” appointed three conservative justices to the Supreme Court who voted to overturn Roe v. Wade.

Liberty Counsel, a nonprofit that works to “advanc[e] religious freedom, the sanctity of human life and the family through strategic litigation,” is attempting to leverage the Alabama ruling to attempt to stop a ballot initiative in Florida that, if passed, would enshrine reproductive rights into the Florida constitution. “Liberty Counsel is using this precedent to argue that Florida’s proposed deceptive and misleading abortion amendment violates Florida’s own laws that routinely recognize that an ‘unborn child’ has the legally protected rights of a person. Unborn life must be protected at every stage,” Liberty Counsel Founder and Chairman Mat Staver said in a statement.

In 2019, the AP reported that Staver “said Trump has fulfilled about 90% of the goals on a list that Staver and other conservative leaders” created that included “steps they hoped he’d take to oppose abortion and rein in the LGBTQ-rights movement.” Staver called Trump "the most pro-religious freedom and pro-life president in modern history.” A 2022 investigation by The Intercept also found that “nonprofit organizations controlled by Liberty Counsel encouraged supporters to vote for former President Donald Trump despite IRS rules that prohibit such entities from directly or indirectly endorsing candidates for political office.”

Another anti-abortion group celebrating the Alabama ruling is the Christian law firm Alliance Defending Freedom (ADF). Senior Counsel with the ADF Denise Burke stated the Alabama decision was “a tremendous victory for life.” Burke told Bloomberg Law that “ADF hopes that this ruling encourages voters, lawmakers, and courts to recognize that life is a human right, no matter the circumstances.” The Southern Poverty Law Center writes that ADF was highly influential during the Trump administration. ADF was “consulted” by former Attorney General Jeff Sessions “ahead of issuing controversial guidance… about how to interpret federal religious liberty protections,” according to ABC News. 

The anti-abortion group Americans United for Life also celebrated the Alabama ruling, with Policy Counsel Danielle Pimentel calling it “a step in the right direction toward ensuring that all preborn children are equally protected under the law.” In 2019, the group said that Trump “may be the most pro-life president in American history.” In 2017, Trump appointed Charmaine Yoest, the former president of Americans United for Life, to be assistant secretary of public affairs at the Department of Health and Human Services.