How Alabama IVF ruling puts women seeking fertility treatment at risk

A ruling by the Alabama Supreme Court that embryos are children has thrown the state into chaos.

A number of hospitals including the state’s largest have halted offering in vitro fertilisation (IVF) services and medical experts and reproductive rights groups have sounded the alarm.

According to NBC News, over 97,000 children were born in 2021 using reproductive technology like IVF.

Over 500,000 children are born every year around the world through IVF.

According to Time Magazine, two per cent of babies in the US are born using IVF

But what happened? What does the ruling mean for women currently undergoing IVF treatment? And what do experts say?

Let’s take a closer look:

What happened?

According to Time Magazine, Alabama in 2018 voted to add language to the state constitution recognising the ‘rights of the unborn child.’

More from Explainers

What happened during Trump's call with Zelenskyy and European leaders? Trump-Putin summit: Why Russia sold Alaska to the US in 1867

Then, last week, three Alabama Justices – all Republicans – used that language to rule that three couples could sue for wrongful death when their frozen embryos were destroyed in an accident at a storage facility.

“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in Friday’s majority ruling.

Mitchell said the court had previously ruled that a foetus killed when a woman is pregnant is covered under Alabama’s Wrongful Death of a Minor Act and nothing excludes “extrauterine children from the Act’s coverage.”

Impact Shorts

View All

'My god, what have we done': The 2 US pilots who dropped atomic bombs on Japan's Hiroshima and Nagasaki

US is making it tougher to obtain green card for married couples. Here’s why

Alabama Chief Justice Tom Parker, in a scripture-draped concurring opinion, wrote that “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

While the court case centered on whether embryos were covered under the wrongful death of a minor statute, some said treating the embryo as a child — rather than property — could have broader implications and call into question many of the practices of IVF.

The finding, treating the embryos similar to a child or gestating fetus under the wrongful death statute, raised questions about what legal liabilities clinics could face during IVF processes, including the freezing, testing and disposal of embryos.

What does the ruling mean for women?

The ruling has left women in Alabama including those undergoing IVF treatment shell-shocked.

Gabby and Spencer Goidel of Auburn, Alabama, turned to IVF after three miscarriages.

According to CNN, they made the decision after being told they could have pregnancies with genetic abnormalities.

IVF, which lets pre-genetic testing, would circumvent any such abnormalities.

The couple moved to Alabama from Texas last year and settled on the Alabama Fertility Specialists in Birmingham.

The ruling came down on the same day Gabby began a 10-day series of daily injections ahead of egg retrieval, with the hopes of getting pregnant through IVF next month.

“When I saw this ruling, I got very angry and very hurt that it could potentially stop my cycle. People need to know this is affecting couples — real-life couples who are trying to start families, who are just trying to live the quote, unquote American dream,” Goidel, 26, said.

Goidel on Thursday received a call from her provider telling her that they would not be able to do an embryo transfer if they sucessfully retrieved eggs.

“I freaked out. I started crying. I felt in an extreme limbo state. They did not have all the answers. I did not obviously have any answers,” Goidel said.

Goidel, who experienced three miscarriages and turned to IVF as a way she and her husband could fulfill their dream of becoming parents, found a place in Texas that will continue her care and plans to travel there Thursday night.

“It’s not pro-family in any way,” Goidel said of the Alabama ruling.

“It was absolutely my worst fear,” Goidel told CNN. “I don’t think I’ve ever been this stressed in my life, this worried.”

“What happens to my embryos after we retrieve them? Do I have to keep those frozen forever? Do I get to let the ones that are genetically abnormal pass naturally? Is my doctor going to be in any sort of danger by doing this procedure to me? There are so many questions in the air right now,” Goidel added.

“All we want is to just have the American dream and have a family,” Goidel said. “I never thought that this would be something that would be seen as immoral.”

Meghan Cole, also a patient at the same facility, suffers from a rare blood disorder that does not let her safely carry children.

Cole told NBC the surrogate who was going to carry her child was all  set to be implanted with an embryo.

But now that’s on halt.

“I thought it was going to be one of the best days of our lives tomorrow, and now we’re just devastated,” Cole said.

Julie Eshelman, who is part of a military family, had her two-year-old through IVF.

She and her husband have their embryos frozen in storage.

CNN reported that Eshelman and her husband now face a tough choice – shifting their embryos to Alabama or

decision: undertake the risk of moving the embryos to Alabama or a state that could adopt a similar policy, or bear the cost of travel to another state for treatments.

Eshelman told CNN. “I don’t even know that I would actually even think about moving them to a state like Alabama, given the current climate, just because I know that they’re safer where they’re at right now.”

Rebecca Matthews, an Alabama resident who has had two children using IVF, still has several embryos.

She told ABC she is afraid about what happens next.

“I never thought it would get to this point,” Matthews said.

Matt Clary told ABC he and his wife are thinking about travelling out of state to finish their IVF treatment, but are unsure about the legal issues that could arise.

“What I’m really concerned about though is could we legally retrieve our embryos?” Clary said. “That’s the limbo that we’re living in right now.”

How have doctors reacted?

Doctors and service providers have been left scrambling.

Doctors have been trying to determine what they can and can’t do after the ruling by the all-Republican Alabama Supreme Court.

Dr. Beth Malizia, a physician at Alabama Fertility, told Time Magazine, “We’re getting all sorts of calls that are very valid from patients who are extremely stressed and concerned about what this means for them and their specific care.”

Three clinics have announced a pause on services while another facility assured patients that IVF treatment could continue.

The University of Alabama at Birmingham system, Alabama Fertility Services and The Center for Reproductive Medicine, in conjunction with a related hospital system Infirmary Health, announced a pause on IVF treatments.

“We understand the burden this places on deserving families who want to bring babies into this world and who have no alternative options for conceiving,” Mark Nix, the CEO of Infirmary Health said.

Alabama’s largest hospital paused in vitro fertilisation treatments Wednesday as providers and patients across the state scrambled to assess the impact of a court ruling that said frozen embryos are the legal equivalent of children.

The University of Alabama at Birmingham health system said in a statement that it must evaluate whether its patients or doctors could face criminal charges or punitive damages for undergoing IVF treatments.

“We are saddened that this will impact our patients’ attempt to have a baby through IVF,” the statement from spokeswoman Savannah Koplon read.

“Disbelief, denial, all the stages of grief. … I was stunned,” added Dr Michael C Allemand, a reproductive endocrinologist at Alabama Fertility, which provides IVF services.

Allemand said they are having daily discussions about how to proceed. He said IVF is often the best treatment for patients who desperately want a child, and the ruling threatens doctors’ ability to provide that care.

“The moments that our patients are wanting to have by growing their families — Christmas mornings with grandparents, kindergarten, going in the first day of school, with little back-backs— all that stuff is what this is about. Those are the real moments that this ruling could deprive patients of,” he said.

“If this is now a person, will we be able to freeze embryos?” Barbara Collura, CEO of RESOLVE: The National Infertility Association, said.

The fertility clinic and hospital in the Alabama case could ask the court to reconsider the decision or ask the US Supreme Court to review the matter if they believe there is a conflict with federal law.

At the Fertility Institute of North Alabama, Dr. Brett Davenport urged patients not to panic and said his clinic will continue providing IVF. But he also urged state policymakers to act and remove the uncertainty for providers.

“What we do could not be any more pro-life. We’re trying to help couples who can’t otherwise conceive a child,” Davenport said.

He said he believes they are on safe legal ground to continuing transferring embryos to a woman. The uncertainties, in his view, surround what clinics can do with frozen embryos that aren’t immediately used.

He said patients might decide to create fewer embryos or skip genetic testing if they are uncomfortable having embryos deemed genetically abnormal “being in a holding state, not knowing when we can thaw them or what we can do with them.”

“We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments,” Hannah Echols, a University of Alabama spokesperson told CNN.

What do experts say?

Experts have come down heavily on the decision.

Elisabeth Smith, director of state policy at the Center for Reproductive Rights, told the BBC, “Not all [IVF] embryos are used, nor can they be.

“To enact legislation granting legal personhood to embryos could have disastrous consequences for the use of IVF - a science many people rely on to build their families.”

The court decision decided only if embryos are covered under Alabama’s wrongful death statute, said Mary Ziegler, a legal historian at the University of California, Davis School of Law. The court did not say embryos had full constitutional rights, she said, or at least not yet.

“I think people in Alabama are rightly expecting that this is the tip of the iceberg though, and this ruling will lead to more down the road,” Ziegler said. She also said anti-abortion groups and politicians have been pushing to get some sort of ruling through the federal courts “that a fetus is a constitutional rights holder.”

“It’s not just about in-vitro and it’s not just about Alabama. It’s part of this nationwide movement too,” she said.

Rachel Rebouche, dean of Temple University Beasley School of Law in Philadelphia, sees the ruling as “emblematic of the long march toward foetal personhood.”

“This may not be the case that launches it, but this is a very strategic decision on the part of anti-abortion forces because they know that personhood bills have failed,” Rebouche said.

Dr. John Storment, a reproductive endocrinologist in Lafayette, Louisiana, said the Alabama decision could affect whether fertility doctors want to move to or stay in that state.

“I don’t think that any doctor knowing that there’s a potential for criminal prosecution would even want to be in that position,” he said. “There’s 49 other states and many other countries they could practice in without the same threat.”

Republicans left scrambling, Democrats attack

BBC quoted the the conservative Christian group Alliance Defending Freedom, as calling the decision a “tremendous victory for life”.

“No matter the circumstances, all human life is valuable from the moment of conception,” spokeswoman Denise Burke said. “We are grateful the Court correctly found that Alabama law recognises this fundamental truth.”

But others disagree.

Eric Johnston, an anti-abortion activist and lawyer who helped draft the constitutional language, said the “purpose of that was more related to abortion.”

He said it was intended to clarify that the Alabama Constitution does not protect the right to abortion and eventually laid the groundwork for Alabama to ban abortions when states regained control of abortion access. However, opponents of the constitutional amendment warned in 2018 that it was essentially a personhood measure that could give rights to fertilised eggs.

“Modern science has raised up this question about well is a fertilised egg that is frozen – is that a person? And that’s the ethical, medical, legal dilemma that we’ve got right now,” Johnston said.

“It’s a very complicated issue,” he added.

State legislators also began looking for a way to protect IVF services in the state.

Republican state Senator Tim Melson, who is a doctor, said he’s not surprised by the unintended consequences of the 2018 constitutional language and intends to file legislation to protect IVF services in the state. Melson said the legislation seeks to clarify that a fertilied egg has legal protections under the statutes once it is implanted in the uterus but until then is a “potential life.”

“I’m just trying to come up with a solution for the IVF industry and protect the doctors and still make it available for people who have fertility issues that need to be addressed because they want to have a family,” Melson said.

The BBC quoted the White House as saying this is “exactly the type of chaos that we expected when the Supreme Court overturned Roe v Wade and paved the way for politicians to dictate some of the most personal decisions families can make”.

Senate Minority Leader Bobby Singleton, a Democrat, said Republicans’ quest to make stringent anti-abortion laws and policies may have eliminated a path for people to become parents.

“At the end of the day, the Republican Party has to be responsible for what they have done,” Singleton said.