In a landmark decision, the Alabama Supreme Court recently ruled that frozen embryos created for in vitro fertilization (IVF) purposes qualify as embryos under the state’s anti-abortion laws.[1] This ruling has profound implications for reproductive rights, reinvigorating discussion on the legal status of embryos.[2] The cases at the center of this ruling involved three couples who brought wrongful death suits upon the accidental destruction of their frozen embryos at a fertility clinic.[3] The court’s decision to classify these embryos as minor children, allowing parents to sue for their deaths, highlights the evolving legal landscape surrounding reproductive technologies.
Alabama’s anti-abortion laws define an embryo as “a human being . . . at any stage of development regardless of viability.”[4] The Alabama Constitution, in fact, features a clause enshrining “the sanctity of unborn life and the rights of unborn children”[5] and stating 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.”[6] By extending this definition to include frozen embryos created for IVF, or extrauterine embryos, the court has essentially assigned legal personhood to these pre-implantation entities.[7] This decision raises fundamental questions about the rights of individuals undergoing fertility treatments as well as the legal status of embryos in a broader sense.
One of the immediate impacts of this ruling is the introduction of severe restrictions on individuals seeking IVF treatments in Alabama because of embryos’ status change from property to person.[8] Legal constraints on the disposition of frozen embryos create obvious roadblocks to the creation of such embryos in Alabama which has already resulted in several facilities stopping IVF treatments and procedures.[9] For those navigating the complex medical landscape of infertility, suddenly stopping in the middle of a painful and emotionally challenging round of IVF medication[10] is a very negative outcome.[11]
Additionally, hospitals and fertility clinics which store successfully created embryos are now refusing to transfer those embryos out of state for continued care that is unhindered by the new ruling, citing the risk of “individuals being held civilly—and potentially criminally—liable for the destruction of embryos.”[12] Ergo, couples or individuals who have already undergone the emotional, physical, and often financial strain of IVF treatments are no longer in control of the embryos they painstakingly created and stored.[13] The ruling adds another layer of consideration to an already challenging process. Moreover, the autonomy of individuals seeking fertility treatments may be compromised as they may now be subject to legal restrictions that impact their choices in family planning.[14]
In addition to its impact on individual choices and reproductive rights, the ruling raises questions about the role of legislation in keeping pace with rapidly advancing medical technologies. Historically, anti-abortion and reproductive legislation emphasized the timeline of potential viability of the embryo.[15] Here, however, the majority brushes off the nonviability of extrauterine embryos as of no moment, claiming that technological advances will soon do away with that roadblock.[16]
In the wake of this state supreme court ruling, Alabama legislators hurried to protect IVF providers and processes, advancing a bipartisan bill to protect clinics from lawsuits which the Governor signed into law.[17] Legislators faced “public pressure” to act with over 200 IVF patients flooding the Alabama legislative building clamoring “to get IVF services restarted in the state.”[18] At the federal level, Senate Republicans blocked a similar bill “even after widespread backlash” to the ruling.[19]
The Alabama Supreme Court’s ruling represents a significant development in the ongoing discourse surrounding reproductive rights because it prompts a reevaluation of the legal status of embryos, thereby impacting the choices available to individuals undergoing fertility treatments and sparking broader conversations about the intersection of law, medicine, and individual autonomy in the realm of reproductive technologies.
[1] LePage v. Ctr. for Reproductive Medicine, P.C., 2024 WL 656591, SC-2022-0515 (Sup. Ct. Ala., Feb. 16, 2024).
[2] See, e.g., Sabrina Talukder, How the Alabama IVF Ruling Is Connected to Upcoming Supreme Court Cases on Abortion, Cᴛʀ. ғᴏʀ Aᴍ. Pʀᴏɢʀᴇss, (Mar. 11, 2014), https://www.americanprogress.org/article/how-the-alabama-ivf-ruling-is-connected-to-upcoming-supreme-court-cases-on-abortion/.
[3] Kim Chandler, Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling, AP Nᴇᴡs, (Feb, 21, 2024, 6:57 AM), https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca.
[4] Aʟᴀ. Cᴏᴅᴇ § 26-23F-3(12).
[5] Aʟᴀ. Cᴏɴsᴛ., Art. I, § 36.06(a) (2022).
[6] Aʟᴀ. Cᴏɴsᴛ., Art. I, § 36.06(b) (2022).
[7] LePage, 2024 WL 656591, at *4 (“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.”)
[8] Chandler, supra note 3.
[9] Julia Harte, Three Alabama providers halt IVF after high court rules embryos are children, Rᴇᴜᴛᴇʀs, (Feb. 23, 2024, 6:42 AM) https://www.reuters.com/world/us/three-alabama-providers-halt-ivf-after-high-court-rules-embryos-are-children-2024-02-22/.
[10] What to Expect from Ovarian Stimulation in IVF, Asᴘɪʀᴇ Fᴇʀᴛɪʟɪᴛʏ, (Nov. 9, 2015) https://www.aspirefertility.com/blog/what-to-expect-from-ovarian-stimulation-in-ivf.
[11] See Grace Panetta, ‘Gut punch after gut punch’: In Alabama, IVF Patients Speak Out, Tʜᴇ 19ᴛʜ (Feb. 27, 2024, 7:20 PM), https://19thnews.org/2024/02/becerra-alabama-ivf/.
[12] Nadine El-Bawab, Elizabeth Schulze & Cheyenne Haslett, Alabama's biggest hospital to suspend transfer of embryos after court ruling, ABC Nᴇᴡs (Feb 23, 2024, 4:42 PM) https://abcnews.go.com/US/2-alabama-clinics-pause-ivf-fertility-treatment-after/story?id=107455469
[13] E.g., Nadine El-Bawab & Mary Kekatos, Alabama women describe heartbreak over some IVF treatments stopping following court ruling on embryos, ABC Nᴇᴡs (Feb. 24, 2024, 2:21 PM), https://abcnews.go.com/US/alabama-women-describe-heartbreak-ivf-treatments-stopping-court/story?id=107461069 (“‘It should be the patient’s choice,’ Cater Durham said. ‘I’m not ready to get rid of that embryo [yet] but I feel like it should be my choice if I want to keep it, donate it, discard it.’”).
[14] El-Bawab, Schulze & Haslett, supra note 12.
[15] Elizabeth Chloe Romanis, Is ‘viability’ viable? Abortion, conceptual confusion and the law in England and Wales and the United States, 7 J. L. & Bɪᴏsᴄɪᴇɴᴄᴇs 1, 7-8 (2020).
[16] LePage, 2024 WL 656591, at *3 n. 2 (“There are, of course, practical limitations on developing extrauterine embryos to term, but those limitations are shrinking each year due to technological advances.”) (internal citations omitted).
[17] Adam Edelman, Alabama governor signs bill to protect IVF treatments into law, NBC Nᴇᴡs (Mar. 6, 2024, 2:02 PM), https://www.nbcnews.com/politics/alabama-lawmakers-ivf-protection-bill-vote-rcna141710 .
[18] Alabama Legislature moves to protect IVF services after state court ruling, AP Nᴇᴡs (Feb. 29, 2024, 4:53 PM) https://www.npr.org/2024/02/29/1235023057/alabama-ivf-bill-passes.
[19] Mary Clare Jalonick & Stephen Groves, Republicans block Senate bill to protect nationwide access to IVF treatments, AP Nᴇᴡs (Feb. 28, 2024, 6:14 PM) https://apnews.com/article/congress-ivf-access-abortion-alabama-bill-ruling-7f68248f36900d4583d9b181f3b4e380.
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