Navigating the Ripple Effects: The Alabama Supreme Court Ruling on IVF and Its Broad Implications

On February 16, 2023, the Alabama Supreme Court declared that embryos created through in vitro fertilization (IVF) should be considered children. This quote from a USA Today article summarizes the situation quite well. "They don't have the scientific understanding of what the consequences of their actions could be," adds Tang, author of the upcoming book It's Not Hysteria: Everything You Need to Know About Your Reproductive Health (But Were Never Told). "The knee-jerk reaction of calling embryos children has now prevented many people in Alabama from being able to have the children they desperately want."

About the Alabama frozen embryo case: It all began when a patient dropped frozen embryos

In the landmark case in Alabama, three couples who had successfully conceived children through IVF treatment found themselves at the center of a legal battle following a tragic incident at their fertility clinic. After undergoing IVF, each couple had remaining embryos that were cryogenically preserved for potential future use—a common practice in IVF treatments. However, in December 2020, an incident at the clinic led to the destruction of these frozen embryos. A patient accidentally opened a storage tank, causing injury to himself and the loss of the embryos upon contact with the air.

The couples filed lawsuits against the fertility clinic and the associated hospital, seeking justice for what they viewed as the wrongful deaths of their unborn children. One of the lawsuits focused on negligence and wantonness, while the other invoked the Wrongful Death of a Minor Act, an Alabama statute. Initially, the trial court dismissed the case related to the wrongful death act, ruling that in vitro embryos do not qualify as "people" or "children" under this law, thus negating the claim.

Undeterred, the couples appealed to the Alabama Supreme Court, which delivered a groundbreaking decision. Contrary to the trial court's ruling, the Supreme Court determined that the Wrongful Death of a Minor Act does indeed apply to all unborn children, including those not in utero at the time of their destruction. This pivotal judgment effectively grants personhood to in vitro embryos, allowing the couples to proceed with their lawsuit and seek punitive damages for the loss of their embryos, recognized by the court as their children. This case not only highlights the emotional and legal complexities surrounding IVF and embryo preservation but also sets a significant precedent in the interpretation of what constitutes life and personhood under the law.

About IVF with Frozen Embryos

The Alabama Supreme Court's decision shines a spotlight on the intricacies of frozen embryo use in IVF treatments, underlining the importance of distinguishing between embryo and egg cryopreservation. The success rates of pregnancy significantly differ between these two methods, with embryo cryopreservation often leading to higher chances of successful pregnancy. This distinction is crucial, especially considering the financial and emotional investments involved in fertility treatments.

Key considerations in the IVF journey:

• Egg Retrieval and Cryopreservation: The initial step involves hormone-induced egg production, followed by retrieval. A critical decision point is whether to cryopreserve these eggs for future use or proceed to fertilization with sperm.

• Sperm Quality: The success of fertilization heavily depends on sperm quality, affecting the decision to proceed with insemination or consider alternative sources.

• Embryo Development: Post-retrieval, the choice between immediate fertilization to create embryos and their subsequent growth is pivotal. The decision to use these embryos in a fresh cycle or freeze them for future attempts introduces multiple pathways within the IVF process.

• Storage Duration for Cryopreserved Embryos: The length of time embryos are stored is influenced by various factors, including the outcomes of initial IVF cycles, family planning goals, and unforeseen circumstances that may delay further attempts.

These elements underscore the complexity and personalized nature of fertility treatment decisions. Each step requires careful consideration, balancing medical advice, personal circumstances, and future family planning aspirations. As the landscape of fertility treatments evolves, particularly in light of legal rulings like that in Alabama, understanding these nuances becomes even more vital for prospective parents navigating their journey to parenthood.

How the Alabama Supreme Court Ruling Impacts IVF

Thus far, the following clinics in Alabama have suspended services due to concern over legal ramifications. They include University of Alabama at Birmingham, Alabama Fertility, and Center for Reproductive Medicine at Mobile Infirmary - the clinic sued in the original case.

CNN shared how one patient had to change what she was doing. Gabrielle Goidel, who has spent three months preparing for treatments, is now being forced to travel to Texas to go ahead after years trying for a baby. “I felt I had the opportunity to be a mom ripped away multiple times,” Goidel told CNN’s Jessica Dean on Thursday. “It just feels every time I try, the rug gets pulled out from under me and my husband. All we want is to be a family and have children and live the traditional American dream.”

A complex series of events occur leading up to egg retrieval. Women can spend months aligning their cycles, ordering medication, paying a lot of money for that medication, and injecting themselves. Once the Alabama Supreme Court ruling happened, anyone in the middle of this has to travel, as Gabrielle described, or stop altogether.

Fertility clinics are facing overwhelming demand. The World Health Organization recently updated the statistic from 1 in 8 to 1 in 6 couples experiencing infertility, exacerbating the challenge of supply meeting demand. For those seeking treatment outside Alabama, questions arise about the capacity of clinics to accommodate additional patients. Furthermore, for women with frozen embryos, accessing and transporting these embryos to another state entails specialized shipping methods, carrying inherent risks.

Now, think about a cancer patient's predicament. The type and stage of cancer can drastically limit the time a woman has to decide on preserving her fertility, ranging from mere hours to a few days. She faces a critical decision: should she freeze her eggs, risk freezing embryos, opt for a combination of both, or possibly forego these options altogether due to the ramifications of the Alabama Supreme Court ruling?

Navigating the Complex Intersection of Legislation and Fertility Treatments: What’s Next

I find myself compelled to ask a rather pointed question: Do these lawmakers truly understand the full scope of their decisions? As a healthcare consultant with a focus on rectifying dysfunctional systems and processes, I've witnessed firsthand the gap between leadership declarations and their real-world implications.

A recent statement by Nikki Haley caught my attention: “We want to make sure whatever we do, that we have plenty of opportunities and availability for fertility treatments to go forward,” she remarked. “We don’t want fertility treatments to shut down.” Haley's experience with artificial insemination, distinct from in vitro fertilization (IVF), raises questions about the depth of her understanding regarding fertility treatments and the nuances that distinguish them.

Artificial insemination and IVF are fundamentally different procedures, each with its own complexities, success rates, and challenges. While Haley’s intent to support fertility treatments is commendable, it's crucial for lawmakers to possess a nuanced understanding of the procedures they are advocating for or regulating. The broad term "fertility treatments" encompasses a range of technologies and medical practices, from simpler methods like artificial insemination to more complex ones like IVF, not to mention the emerging field of genetic screening and embryo selection.

The distinction is not just technical but impacts the accessibility, cost, and ethical considerations surrounding fertility treatments. Policies that do not account for these differences may inadvertently limit access to certain treatments or impose unnecessary barriers on those seeking to start a family.

Moreover, the broader conversation around fertility treatments and legislative oversight raises significant questions about the balance between regulation and freedom, medical ethics, and patient rights. It's imperative for policymakers to engage with medical professionals, ethicists, and, most importantly, the individuals and families directly affected by these treatments, to ensure a comprehensive understanding of the stakes involved.

As we navigate this complex terrain, the call to action for lawmakers is clear: go beyond surface-level statements and commit to a deeper engagement with the intricacies of fertility medicine. Only through informed, nuanced policymaking can we hope to truly support individuals and couples in their journey toward parenthood, ensuring that the promise of fertility treatment accessibility becomes a reality for all who seek it.

How individuals can take action

Organizations like the American Society for Reproductive Medicine and Resolve: The National Infertility Association are taking action and so can you. Below is a list of what I have come across to date. If you have additional suggestions, email me.

Access to Family Building Act: Thanks in part to ASRM, Senators Tammy Duckworth (D-IL) and Patty Murray (D-WA) and Congresswoman Susan Wild (D-PA-7) introduced the Access to Family Building Act to ensure the right to build a family is upheld and remains protected, regardless of a person’s zip code. You can send a note to your local government official. The form is easy to fill out.

Fight for Families: Led by Resolve: The National Infertility Association, you can enter your email for updates on events and actions. One upcoming event is Advocacy Day on May 14. I went years ago, and it was amazing!

Sources

Interview on Public Health on Call with Dr. Joanne JD, MA, a practice professor in Health Policy and Management