Associate Editor
Loyola University Chicago School of Law, JD 2024
The Alabama Supreme Court ruled last month that frozen embryos, commonly used for In-Vitro Fertility (IVF) treatments are considered children under the Alabama constitution. This ruling has caused significant unease among fertility clinics in Alabama and those in states with other staunch pro-life states. To make matters worse, the court did not specifically provide a road map as to how fertility clinics may operate in order to avoid civil monetary damages or potentially criminal prosecution under state statute. While it is too early for panic in other states, fertility clinics in Alabama and other pro-life states should pay close attention to the ruling and the actions within their states in the near future to observe how states choose to apply their anti-abortion legislation.
What happened?
The ruling resulted from two wrongful death cases brought by three couples who stored frozen embryos at a fertility clinic, which were subsequently destroyed in an accident. The court referenced anti-abortion language in the state’s constitution in conjunction with Alabama’s Wrongful Death of a Minor Act, which provides recourse for parents based on the death of an unborn child. The court concluded that that state statute applies to all unborn children.
Notably, the decision is vague in that it lacks guidelines for what is specifically proscribed with regard to IVF treatment. As the president and chief executive of the National Infertility Association, Barbara Collura, noted, “they didn’t say in vitro fertilization is illegal, and they didn’t say that you can’t freeze embryos. It’s even worse, there is no road map.” Rather, Justice Jay Mitchell said in his opinion, “Unborn children are children…without exception, based on developmental stage, physical location, or any other ancillary characteristics.”
Where did this come from?
In 2022 the US Supreme Court, in the Dobbs decision, left the decision on abortion rights to the states. As such, states now how the ability to determine the scope of their abortion prohibitions or permissions. The Biden administration has said that rulings such as the one handed down in Alabama, could represent some of the chaos feared to stem from providing increased autonomy to states.
Alabama is the first state to take this broad of a stance on interpreting restrictive anti-abortion legislation. However, the state legislature quickly responded to this ruling by overwhelmingly passing an IVF-protection billat the end of February. This suggests that even in Alabama, protections for families and IVF providers remains a priority. It is worth noting that Congress declined to pass a similar federal bill (Access to Family Building Act) within a matter of days of the Alabama legislature’s decision. Thus, it remains unclear how Alabama’s stance will apply across all states.
What are the implications for IVF clinics in pro-life states?
Since the ruling was announced, at least three fertility clinics have suspended IVF while they attempt to better understand the implications of the ruling. As previously referenced, there are questions that remain regarding the legality of IVF treatment in general, as well as the legality of freezing embryos as Congress failed to pass a bill that would have established a federal right to IVF treatment.
Clinics should be encouraged by several public statements made within the last week as well as the Alabama legislature’s action to respond to the decision. The Alabama Attorney General, Steve Marshall, said on Fridaythat he does not expect to prosecute IVF families or providers based on the supreme court’s ruling. This was quickly reflected in the state legislature as they passed a bill last week to provide protections to families seeking IVF treatment. Both the Biden Administration and Trump have come out in support of IVF treatment. Trump said last week, “we want to make it easier for mothers and fathers to have babies, not harder. That includes supporting the availability of fertility treatments like IVF in every state in America.” However, in a vote last week, Senate Republicans blocked the Access to Family Building Act which would have granted a federal right to IVF treatment. Thus, questions remain regarding the legality of IVF treatment, and holds the door open for other courts to follow the Alabama Supreme Court’s decision by holding clinics and providers liable for the destruction of frozen embryos.
It is unclear what’s next with regard to states following Alabama’s interpretation or how it will be enforced on a broad scale. Fertility clinics, especially those in pro-life states, should pay close attention to progression of legislation in Congress as well as their state of operation following the decisions that have taken place in the last weeks. However, it light of public statements made by both parties, it does not appear that a prohibition on IVF treatment is imminent.
Going forward.
Over 2% of all births are accomplished through reproductive assistance. The Alabama supreme court sent a dangerous message to clinics, hopeful parents, and their community at large by creating a pathway to holding fertility clinics liability for common practices. Already, families in Alabama have been forced to seek help in other states, increasing the already expensive costs of their fertility treatments. An associate professor at the University of Pittsburgh said he expects that, at a minimum, embryos will no longer be stored in Alabama. It is likely that this will remain true even with the passage of statutory protections for IVF treatment, as it did not fully answer questions regarding embryo storage. This could result in increased storage and logistical costs, as well as higher-level risk which will likely impose increase already exorbitant costs for families seeking treatment and continue to make such treatment less accessible. Clinics across the country must remain vigilant in an effort to continue to protect families and provide the services they need.
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