IVF supporters are 'freaking out' over Alabama court decision treating embryos as children

Frantic calls to fertility clinics. Plans to move frozen embryos to states with more liberal reproductive laws. Heartbreaking decisions about when and where to get pregnant.

A religious-tinged Alabama court ruling last week regarding frozen embryos has sparked panic across the in-vitro fertilization community nationwide as patients, practitioners and attorneys grapple with the decision's implications.

Advocates said they expect the decision to force some IVF clinics to halt operations. On Wednesday, the University of Alabama at Birmingham Health System paused all IVF procedures, pending review.

"People are really freaking out," said Lindsay Heller, a New Jersey-based family law attorney and mother of two IVF children. "I thank whoever is up there (in heaven) every day for my beautiful happy children. And the idea that someone could be deprived of that because of some government decision, well, I could cry. It's devastating that this is the world we're living in right now."

The Alabama Supreme Court ruled Friday that IVF embryos are "extrauterine children" and legally protected like any other child, a decision with wide-ranging implications for both the IVF process and for the estimated 1 million frozen embryos stored at clinics and facilities nationwide.

IVF advocates worry the Alabama ruling could be replicated elsewhere after the overturning of Roe vs. Wade in 2022, a move that abortion opponents say they're already preparing to make. Alabama's existing Human Life Protection Act makes it a felony for a doctor to perform virtually any kind of abortion, and the state court cited that law in its ruling.

Nationally, about 2% of births a year involve IVF, an emotionally and physically exhausting process by which multiple eggs are harvested, fertilized and implanted to create a pregnancy. In most cases, doctors create more embryos than are implanted, allowing patients to store those embryos in liquid nitrogen for future use, donation or destruction.

IVF families have often struggled for years to get pregnant, and undergoing expensive IVF treatment typically requires the administration of powerful fertility drugs and invasive medical procedures for the chance to have a baby. People turn to IVF for many reasons, including fertility loss after cancer treatments, or military members heading out on long-term deployments who want to delay having children.

The Alabama court ruling raises questions about whether the donors have the right to destroy stored embryos or whether the embryos have an independent right to be implanted and gestated to birth. Experts also say they worry that the ruling could make doctors liable for homicide for destroying an embryo during the IVF process, which could ultimately dissuade people from even trying to have children via IVF.

Scientists say the decision also could halt important research done with donated embryos.

The ruling came in a court case in which two couples sued after their frozen embryos stored in liquid nitrogen were accidentally destroyed. The court acknowledged its decision could reshape or even halt IVF in Alabama and potentially nationally, but it said law and faith required the finding. More than 20 states require some form of fertility-assistance coverage by health insurers. Alabama is not among them.

"In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself," Alabama Chief Justice Tom Parker, an elected Republican, wrote in an opinion attached to the ruling.

IVF is responsible for nearly 100,000 babies born every year, according to the Centers for Disease Control and Prevention. Because IVF was developed after Roe became the law of the land in 1973, embryos have typically been treated as private property that donors could implant, give away or have destroyed without consequence.

"This feels like a tremendous leap backward," said Dr. Beth Malizia, 49, a partner at Alabama Fertility, which has fertility clinics in Birmingham, Huntsville and Montgomery. "What I'm telling folks right now is to sit tight and give us some time ‒ this is a very fluid situation."

Malizia said that her clinics store their embryos and other tissue in a purpose-built vault with three monitoring systems and that so far no patients have asked to destroy any stored embryos.

"In the short term, which is all I can deal with right now, we are continuing to provide care," said Malizia, who read the court's 131-page decision Saturday afternoon before calling her partners to share the news. "Fertility care involves a lot of stress to begin with, and when you have something like this, it creates a lot of questions for the patients and is tremendously adding to their stress and anxiety."

UAB said in a statement Wednesday that it would pause egg fertilization and embryo development as it considered the implications of the court's decision.

"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," spokesperson Hannah Echols said.

Robin Marty, executive director of the West Alabama Women’s Center, said she hopes the Alabama Legislature steps in. She said the state already has draconian anti-abortion laws but predicted lawmakers might create a narrow exemption for IVF patients.

The court's decision “is going to be both legally and financially daunting for providers, but also for patients who are going to try to start families,” Marty said. “I think that it could quite frankly be the end of any sort of reproductive assistance out here at all.”

The uncertainty has shaken the IVF community, which had worried the U.S. Supreme Court's 2022 decision to overturn Roe vs. Wade and permit states to ban abortion would lead to rulings like this, particularly in states like Alabama where anti-abortion laws say life begins at conception.

"When you declare that a fertilized egg is a person, it calls into question a number of things that happen in the IVF process," said Barbara Collura, CEO of Resolve: The National Infertility Association.  "Can we freeze people? If every single fertilized egg is a person, what happens if they don't develop into a person?"

Tara Harding, 38, a North Dakota-based nurse practitioner and fertility coach, had her son, 6, though IVF, and she hopes to get pregnant again soon. But she'll go to Colorado for the treatment and egg harvesting, she said, because it's a strongly Democratic state unlikely to adopt a stance like Alabama's. She said she's also going to focus on educating North Dakota lawmakers about the importance of legally protecting the IVF process.

"We're all up in arms," Harding said. "When something happens in one state, it bleeds over to the rest of us."

Some federal lawmakers have been pushing to protect the IVF process from rulings like this one, and have filed the "Access to Family Building Act" that would protect Americans' right to use IVF and dispose of any embryos as they wish.

"This weekend’s 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," Sen. Tammy Duckworth, a Democrat from Illinois who had two daughters via IVF, said in a statement urging Congress to pass the act she sponsored. "No one looking to start or grow their family, in any state, deserves to be criminalized."

Customers have been calling international IVF storage facility service TMRW Life Sciences, asking to move their embryos and eggs to New York and Colorado, states with strong protections for abortion and reproductive rights, said Lindsay Beck, the company's chief impact officer. TMRW has more than 200,000 eggs and embryos stored in multiple facilities.

Beck, a cancer survivor who froze her own eggs before beginning chemotherapy, said it's understandable that prospective parents are worried about their embryos.

"As an egg-freezer, IVF-mom and lifelong patient advocate, I know first-hand that no matter where you live or what your politics are, no one wants their frozen eggs and embryos at risk – for any reason," she said. "Patients deserve the highest levels of safety, security, and transparency for their frozen eggs and embryos."

The National Right to Life Committee, the oldest U.S.-based anti-abortion group, does not have a formal position on IVF but has previously opposed an IVF process known as "selective reduction," where a fertility doctor implants multiple embryos, waits for them to begin developing, and then removes the ones growing the slowest in order to protect the strongest one.

The Catholic Church considers IVF immoral and opposes its use.

Heller, the IVF mom and a lawyer at Fox Rothschild LLP, said the decision also has wide-ranging implications for couples who create embryos and later divorce. She worries about a situation in which a husband could legally take those embryos, have them birthed by a surrogate, then sue his ex-wife for financial support.

For Heller, it's not an abstract concept: She has nine embryos in storage and had planned to keep them for a few more years. But if she believes a new president might win election in November and copy the Alabama ruling once in office, she'd consider destroying them first.

"It's very scary. That's the chilling effect that a decision like this has, that IVF might fall by the wayside if you're going by religious values about how life is created," she said. "Roe vs. Wade was overturned less than two years ago, and here we are."

Contributing: Hadley Hitson, USA TODAY Network