Alabama says frozen embryos are children: How this affects IVF

Reproductive rights in the United States have been a subject of huge debate and concern. The US supreme court’s decision to overturn Roe vs Wade in 2022 has only emboldened some states to restrict abortions and other procedures. Now in-vitro fertilization (IVF) is in the limelight, as doctors and patients tread carefully following a ruling by the Alabama supreme court – it said that frozen embryos created through IVF are considered children under the state law. This means that people could be sued for destroying an embryo.

The decision could potentially leave clinics vulnerable to lawsuits and restrict access to treatment, says a report in The Associated Press (AP).

We take a look at what the Alabama court said, how embryos are frozen and what implications is this ruling likely to have.

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What did the Alabama supreme court rule?

The case is related to a wrongful death lawsuit by three couples whose embryos were lost at a fertility clinic in 2020. They were destroyed after a patient accidentally dropped the embryos.

The three couples went to court and sought to sue the Center for Reproductive Medicine and the Mobile Infirmary Association under Alabama’s Wrongful Death of a Minor Act. That law covers foetuses but does not specifically cover embryos resulting from IVF, according to a report in the BBC.

A lower court ruled that the wrongful death lawsuit could not move forward. But the Alabama top court decided in favour of the couples on Friday, saying frozen embryos were considered “children”. In its order, the Alabama SC said that wrongful death law applied to “all unborn children, regardless of their location”.

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The ruling is likely to have implications for people seeking IVF.

What is IVF and how are embryos frozen?

In-vitro fertilization, popularly known as IVF, offers a possible solution when a woman has trouble getting pregnant. It involves retrieving her eggs and combining them in a lab dish with a man’s sperm to create a fertilised embryo. This is then transferred into the woman’s uterus in an attempt to create a pregnancy.

The procedure can use a couple’s eggs and sperm or those from a donor.

The freezing process of embryos involves replacing the water in embryo cells with a protectant fluid and flash freezing with liquid nitrogen, according to Johns Hopkins Medicine. Frozen embryos can be used for future pregnancies, and the vast majority survive the thawing process, reports AP.

Frozen embryos are stored in tanks containing liquid nitrogen at hospital labs or reproductive medicine centres. These can be safely preserved for a decade or more.

Also read: Explained: How the decision to overturn Roe v Wade exposes the complex ties between judiciary and public

How the Alabama court ruling could impact IVF

The ruling does not ban IVF but has made doctors and patients opting for the procedure wary.

Days after the ruling, Alabama’s largest hospital has paused its IVF services amid fears that it could expose them to criminal prosecution. The University of Alabama at Birmingham said that it would continue retrieving eggs from ovaries but would halt the next step in the IVF process, which involves fertilisation of the eggs with sperm and implanting it in the uterus.

On Wednesday, spokesperson Savannah Koplon said that the institution was “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”.

What are doctors and medical experts saying?

Dr Paula Amato, the president of the American Society for Reproductive Medicine, an organisation that lobbies on behalf of fertility experts and patients told The New York Times (NYT) that the ruling was “very concerning.” “The ruling potentially criminalises or sets a high civil penalty for standard procedures that we do every day.”

The US supreme court’s decision to overturn Roe v. Wade sparked speculation about how the ruling could lead to problems with fertility care, said Greer Donley, an associate professor at the University of Pittsburgh School of Law. “This is one of the first places that is proving that,” she said.

Donley expects that IVF will remain available in Alabama but embryos will not be stored there. However, moving them to other states for storage will increase the cost, logistical challenges and risk associated with the procedures. “This opens up the possibility of using the child welfare laws more holistically for criminalising doing anything that could harm the embryo,” Donley said.

Gail Deady, senior staff attorney at the Center for Reproductive Rights, told NBC News, that the ruling “does not appear to create criminal liability for IVF providers”.

“What it does implicate is the Wrongful Death Act, which is civil liability and negligence,” she said, meaning people could be sued for the destruction of embryos and have to pay monetary penalties. Nevertheless, “anyone who cares about reproductive autonomy should be terrified of this decision,” Deady added.

Will the Alabama decision affect the rest of the US?

Doctors outside the state are worried about the possible national implications of the recent court decision.

It could “substantially restrict access to a very vital fertility treatment that has helped countless folks today expand their families,” said Dr Jason Griffith, a reproductive endocrinologist in Houston. “When you look at the percentage of pregnancies in the United States that result from in vitro fertilisation, it’s around two per cent.”

It could also increase the cost of IVF for many families — although it’s unclear by how much — because of things like additional storage fees and liability costs, he said. One cycle of IVF, including all embryos transferred, now costs about $15,000 to $25,000, Griffith said.

Another possible ramification is that there will be fewer IVF providers, he was quoted as saying by AP.

Dr John Storment, a reproductive endocrinologist in Lafayette, Louisiana, agreed that the Alabama decision could have a ripple effect across the entire country. “It’s one of the bigger things to happen in reproductive law in the last decade,” he said.

Infertility affects nine per cent of men and 11 per cent of women of reproductive age in the United States, according to data.
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With inputs from agencies
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