Alabama IVF Clinic Halts Services After State Rules Frozen Embryos Are ‘Children’

The decision comes in the wake of a sweeping state high court decision.
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The health system at the University of Alabama at Birmingham is the first fertility clinic to pause in vitro fertilization services in the wake of a sweeping state high court ruling.

The university’s Division of Reproductive Endocrinology and Infertility paused services this week in fear or criminal prosecution, first reported, after the Alabama Supreme Court ruled Friday that frozen embryos are “children.”

“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 spokesperson for UAB, told HuffPost.

The state Supreme Court decision centered on a lawsuit in which three couples sued an Alabama fertility clinic in 2020 for the “wrongful death” of their frozen embryos, under a law meant to impose civil penalties for the deaths of children. The embryos were reportedly destroyed when a patient at the clinic accessed the cryogenic storage area where the embryos were kept and dropped the embryos on the floor. A circuit court judge had dismissed the lawsuit in the wrongful death suit, ruling that the statute did not apply to frozen embryos.

The Alabama Supreme Court reversed that decision on Friday, with a majority of the justices ruling that fertilized eggs and embryos hold the same rights as children.

“[T]he Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation,” the ruling said. “It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

IVF is a medical procedure where sperm outside the body fertilizes an egg that’s then implanted into a uterus. Doctors typically implant one fertilized egg at a time and if the patient becomes pregnant, they can choose to discard their other fertilized eggs or freeze them for possible future use.

Abortion rights advocates have warned that this is the next step in the war on reproductive rights. Some anti-abortion activists oppose IVF because they believe a fertilized egg is a person, and they consider discarding fertilized eggs to be murder. Other conservative groups have gone after IVF because the fertility treatment helps many LGBTQIA+ people start families.

Alabama’s Wrongful Death of a Minor Act is not an uncommon type of law throughout the U.S. The majority of U.S. states have some form of civil action for the wrongful death of a fetus, but 25 include a viability statute, meaning parents can only file a wrongful death suit on behalf of a fetus if it was viable or past 24 weeks. Other states abide by what is referred to as a “conception” standard in wrongful death suits for fetuses, which generally consider an “unborn child” covered by such laws to be an embryo “in utero” or “carried in the womb.”

Florida is currently pushing through a similar “wrongful death” bill that would allow parents to recover civil damages for the death of a fetus. Florida Democrats and pro-choice groups are concerned the law will be weaponized against physicians offering reproductive care like IVF ― just like what’s happening in Alabama.

Sen. Tammy Duckworth (D-Ill.) had her two children through IVF and has long championed protections for fertility treatments. The senator has introduced multiple bills over the last few years to protect fertility treatments on the federal level, including most recently the Access to Family Building Act, which seeks to create a federal right to access IVF and other fertility treatments.

“Since the Supreme Court threw out Roe v. Wade, our nation has seen a wave of Republican-led states enacting strict abortion bans to severely limit their residents’ right to access basic reproductive care, leaving many hopeful parents ― and those of us who relied on IVF to start and grow our own families ― worried about whether access to these important technologies could be next,” Duckworth said in a statement Wednesday.

“The ruling from the Alabama Supreme Court ― effectively labeling women who undergo IVF as criminals and our doctors as killers ― proves that we were right to be worried,” she added. “No one looking to start or grow their family, in any state, deserves to be criminalized.”

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