27 Sep 2024 Alabama High Court Ruling Deems Frozen Embryos Children, Threatens IVF and Sparks Backlash

Earlier this year, the Alabama Supreme Court ruled that all embryos are legally regarded as children, stating that Alabama’s Wrongful Death of a Minor Act applies to all unborn children, regardless of their location. By granting frozen embryos the same legal status as living children, the court's decision could dramatically alter how embryos created during assisted reproduction are managed, stored, and disposed of. The ruling may also impact countless intended parents relying on in vitro fertilization (IVF) to conceive, as well as medical professionals, raising complex legal, ethical, and medical questions about the future of reproductive rights in the United States.

The ruling was based on a case that we reported on earlier in which three patient families sued the Center for Reproductive Medicine for negligence after an individual bypassed a secured area in the cryobank, removed five frozen embryos, and accidentally dropped them on the floor, rendering them unusable. The Alabama Supreme Court ruled that embryos were protected under the state’s Wrongful Death of a Minor Act, which allows parents to seek punitive damages for the wrongful death of a child. The majority opinion relied in part on a 2018 Alabama constitutional amendment that protects “the rights of the unborn child,” including the right to life, thereby extending legal protection to embryos at all stages of development, whether in utero or not​, per the American Bar Association (ABA).

Frozen Embryos Stored Indefinitely for Fear of Prosecution

One of the impacts of the ruling may require patients to keep surplus frozen embryos indefinitely due to fear of legal prosecution, as embryos are now legally considered children. This creates a financial burden, with cryopreservation costs often exceeding $1,000 annually. Previously, patients could donate or dispose of unused embryos, but the ruling complicates these options, especially for nonviable embryos. Leah Bromley, a mom in Tuscaloosa, Alabama who has eight nonviable embryos that are not recommended for IVF transfer, tells Yahoo, "Are they going to make me try and have all those babies? Are they going to try and come after me for negligent homicide?" The legal ambiguity surrounding the ruling leaves patients and medical professionals in a state of uncertainty.

Medical Professionals Risk Higher Costs and Prosecution

Many IVF clinics halted treatment in the aftermath of the decision for fear of criminal prosecution. And although Alabama swiftly passed legislation allowing IVF to continue with safeguards for clinics and doctors, the American Society for Reproductive Medicine (ASRM) states that this legislation “clearly offers only a temporary solution. It fails to correct the underlying mistake the Court made when it conflated an in vitro fertilized egg with a child.”

Alabama’s embryo ruling and hastily passed IVF shield law has not only disrupted the standard practices of reproductive technology but has also raised critical questions about the balance between legal definitions and the lives of intended parents undergoing fertility treatments. Veronica Wehby-Upchurch who has one son, also has two frozen embryos stored in a cryobank. She tells The New York Times, “To declare embryos children is to dismiss what people go through to hold a baby in their arms. An embryo in a dish is not even the start line, and a pink line in a pregnancy test isn’t the finish line.”

Texas Supreme Court Refuses to Hear Frozen Embryo Case

As the Alabama case sets a precedent by granting frozen embryos the same legal status as children, creating uncertainty and fear among IVF patients and medical professionals alike, another complex case has been unfolding in Texas. The Antoun v. Antoun lawsuit, which we have reported on before, gained national attention last year as a divorcing couple disputed custody of cryopreserved embryos citing Texas' strict abortion law. The couple had signed consent documents granting the husband possession of the embryos in case of divorce, however, the wife argued she didn’t fully understand what she had signed and claimed the embryos should be treated as “unborn children” and not property, contending that they should be protected under the Texas Human Life Protection Act that took effect after the Dobbs ruling. The court sided with the husband, ruling the signed agreement was binding.

In March of this year, the wife petitioned the Texas Supreme Court to review and reverse the court of appeals decision citing that “the definition of ‘unborn child’ does not require a pregnancy. Embryos destroyed prior to implantation may not have been aborted, but they still have lives [that] ended too soon.”

In June, however, the Texas Supreme Court refused to hear the case which may signal a reluctance to fall in line with Alabama’s ruling and its subsequent backlash. Appellate lawyer Chad Ruback tells Kera News that it will now be up to the state lawmakers to clarify regulations surrounding assisted reproductive technology (ART) when they convene in January. He says, “Texas law is not yet ready, I believe, for a simple statute that says life always begins at conception without a bunch of additional statutes or related statutes being either tweaked or interpreted by a court to address that change.”

Tim Walz Elevates IVF Access Contributing to the Backlash of the Alabama Ruling

On August 6th, Vice President Kamala Harris named Minnesota Governor Tim Walz as her running mate, catapulting him into the national limelight. Walz quickly took the opportunity to be a vocal supporter of ART, including IVF, as part of his broader advocacy for reproductive rights. During his acceptance speech, Walz spoke about his own fertility journey stating, “If you’ve never experienced the hell that is infertility, I guarantee you, you know somebody who has. And I can remember praying each night for a phone call, the pit in your stomach when the phone had rang, and the absolute agony when we heard the treatments hadn’t worked.”  Although his family relied on intrauterine insemination (IUI) rather than IVF, Walz has emphasized the importance of protecting access to all fertility treatments for all intended parents.

Walz has shared personal stories about his family’s experience with infertility including that he and his wife spent seven years trying to have children. His willingness to share his personal story has given light to the emotional and physical challenges that many Americans face, and his belief that reproductive health decisions, including the use of IVF, should be free from government interference, directly opposes efforts by antiabortion advocates who want to restrict such procedures, per The New York Times.

While we are hopeful that the Texas Supreme Court's refusal to hear the frozen embryo case and Tim Walz's advocacy for ART may help slow further restrictive legislation, the need for vigilance remains. The Alabama ruling sent shockwaves throughout the country, leaving reproductive health professionals and intended parents grappling with its far-reaching implications. Many of the questions raised by the ruling and other so-called “personhood” laws in other states will no doubt be fought out in courtrooms across the country.

One thing is clear: the fallout from the 2022 U.S. Supreme Court Dobb’s decision that overturned Roe v. Wade and stripped American women of abortion rights has trickled into the world of IVF and raised significant concerns about the status and management of frozen embryos, the role of medical professionals in their care, and the future of reproductive rights in the U.S. We must continue advocating for policies that protect the rights of all intended families no matter their path to parenthood.

To stay informed on evolving state policies in real-time, we encourage you to visit RESOLVE: The National Infertility Association. At IFLG, we remain committed to staying up to date on legislation in every state and are fierce advocates for reproductive rights. Please reach out with any questions regarding your fertility journey. We are here to help.