Ann Hui Ching

On Feb. 16, the Alabama State Supreme Court declared that embryos created through the process of in vitro fertilization, or IVF, could be considered children under the law. Since then, many of the state’s IVF clinics have paused treatment, prompting concern about access to reproductive healthcare. 

IVF is the most widely used type of assisted reproduction — methods used to help patients who struggle to conceive. For Molly McAdow, assistant professor of obstetrics, gynecology and reproductive sciences at the School of Medicine, it’s a procedure she sees frequently.

“I take care of many, many, many patients who have undergone IVF,” McAdow said. “Most families that use IVF use it because they want to have a family, they want to have children, and they are unable to do that spontaneously on their own. They choose to do that in order to have children that are more biologically related to them.”

The IVF process involves a combination of egg retrieval, fertilization in a lab and the eventual transfer of an embryo to the uterus. First, a patient usually takes medication to stimulate the ovaries to release eggs, which doctors can collect. These eggs are fertilized in a lab using sperm cells from a partner or a donor. These resulting embryos are cultured in the lab until they are ready to be implanted back into the patient’s uterus, where they develop into an infant.

According to McAdow, some families also opt for IVF when pregnancy poses a health risk due to medical conditions, such as polycystic ovary syndrome, endometriosis or autoimmune disorders. Through IVF, people with those conditions can create embryos that can be implanted into a surrogate’s womb that can carry the embryo until birth — safeguarding the patient’s health or preventing the worsening of their medical condition during pregnancy. 

IVF also offers the possibility to screen embryos for severe genetic disorders like Huntington’s disease, McAdow added, saying that it ensures that debilitating genetic diseases are not passed on to a young child.

Alabama’s contentious Supreme Court case stems back to December 2020, when a hospital patient wandered into a storage area — a “cryogenic nursery” — containing frozen embryos at a fertility clinic. The sub-zero temperatures, however, freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor and kill them, according to the Supreme Court’s majority opinion.

Even though the parents had already conceived children through IVF, the IVF process typically produces more embryos than can be implanted into a patient’s uterus. The fertility clinic had cryopreserved those extra embryos so that if the parents would later decide to have another child, they would not have to repeat the long process of hormone therapy and surgery. 

After the resulting destruction of their embryos, the parents filed lawsuits against the clinic and the hospital. But at a trial court in Mobile, Alabama, the lawsuit alleging wrongful death under an Alabama statute was dismissed. The court ruled that in vitro embryos do not qualify as children or people under Alabama’s Wrongful Death of a Minor Act, a statute that allows parents of a deceased child to seek damages for their child’s death. 

After the plaintiffs appealed the decision, however, Alabama’s Supreme Court reversed the ruling. As a result, the Supreme Court decision extends legal recognition of personhood to in vitro embryos, as well.

“The central question … is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed,” Justice Jay Mitchell wrote in the Court’s majority opinion. “Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children”

Mark Mercurio, the director of the Program of Biomedical Ethics at the School of Medicine, said he recognizes that many people believe that human rights begin at conception and consider embryos as human lives. 

“I see why someone might come to that conclusion,” Mercurio said. “I don’t personally agree with it.”

For several fertility experts, the News spoke with, the decision sounded alarm bells. For McAdow, the pressing concern for providers and patients isn’t the philosophical question of when life begins. Rather, she raised concerns about individuals’ ability to start families through IVF, when otherwise, they might be unable to conceive.

“I think this idea of life beginning at embryo when an egg is fertilized just isn’t the point to me,” she said. “This decision would really significantly hinder the ability of families who want to be loving parents to be able to have children. I disagree with the concept.”

Sandra Ann Carson, the section chief of reproductive endocrinology and infertility at the School of Medicine who oversees the IVF program at the Yale Fertility Clinic, also raised concerns about the decision and its impact on how IVF clinics operate. The court’s decision to grant embryos the same rights as minor children, she said, might leave physicians and clinics liable for criminal charges in cases where embryos are lost or discarded. 

The ambiguity as to whether IVF physicians, clinics or parents would be held accountable for the embryo’s destruction raises a maze of legal questions for healthcare providers — and some have already reacted. In light of this recent ruling, the University of Alabama at Birmingham, a major public health provider in Alabama, has paused IVF procedures. 

Carson said she is concerned that if IVF procedures are paused, physicians and clinics might not resume services due to legal uncertainties surrounding embryo management and responsibility in case of damage. She also said she believes that the precedent could leave patients in Alabama who need IVF without fertility options. 

“If those embryos are destroyed, that would be like destroying a minor child,” Carson said. “That’s why [clinics] have paused IVF because they don’t quite understand what that would mean in reality. I think it’s probably not a good idea for many reasons, the least of which is that women or couples who need in vitro fertilization are probably going to be put in a very difficult position.”

McAdow expressed concerns about the disparities of access for those seeking IVF. In particular, she noted that wealthier individuals are more able to afford out-of-state options, while poorer people may be stuck, she said. 

According to McAdow, the decision will especially affect women for whom pregnancy poses health risks and were considering using a surrogate. These patients might then seek surrogacy services outside their state. However, the disparity is exacerbated by the fact that many individuals don’t have the financial capability or access to surrogacy options elsewhere, McAdow said.

“Some of those people who have the most access to resources will be able to travel out of state and will find an alternative,” McAdow said.  “The more affluent and well-connected individuals in Alabama will be able to go elsewhere to grow their family.”

Both Carson and Mercurio questioned the legal implications of considering the embryos as children. 

“You could say everything from if you decide that fertilized eggs have the same rights as children, so can folks write them off on their taxes?” Mercurio asked. “Do they count as you determine congressional representation? I mean, do they count in the census? If they’re children, then they can’t be considered property.”

For Mercurio, this issue is a part of the broader U.S. “culture war.” He said that those advocating for fertilized eggs to have the same rights as born children will struggle to adapt their beliefs to the opinions of others. 

“If you have that belief, it’s going to be very hard to reconcile that with the way so many other people in society feel,” Mercurio said.

The first IVF birth occurred in 1978.