Alabama Ruling Fuels Fears of Embryo Transport Legal Battles

Alabama fertility patients and their health-care providers looking to transport embryos out of state risk becoming embroiled in interstate legal disputes after Alabama’s high court ruling recognizing unimplanted human embryos as children.

Reproductive health clinics are trying to navigate the legal uncertainty surrounding in vitro fertilization after the Alabama Supreme Court’s Feb. 16 decision on the state’s Wrongful Death of a Minor Act. The court said this law allows parents to recover punitive damages for their children’s deaths, and includes the parents of unborn children, regardless of the ability to survive outside the womb.

While the ruling didn’t explicitly prohibit IVF, the University of Alabama at Birmingham’s Division of Reproductive Endocrinology and Infertility and other fertility clinics across the state responded by pausing treatments over fears patients and their physicians would face prosecution. Legislation is quickly moving through the Alabama legislature seeking to protect IVF, and a group of lawmakers on Capitol Hill is trying to enact protections at the federal level.

As a result of the uncertainty, some patients are considering moving their embryos to other states and continuing treatment there. But policy watchers say this could open the door to litigation against patients and their health-care providers who transport their embryos to other states to be destroyed.

The difficulties navigating this legal uncertainty is likely to be enough to deter specialists and fertility services from providing care to patients from Alabama and other states with reproductive health restrictions, legal analysts say.

Patients who have embryos stored in Alabama “have to think seriously about moving those embryos out of the state,” but “that itself creates a fair amount of risk or probably fear and concern,” said Molly Meegan, chief legal officer and general counsel for the American College of Obstetricians and Gynecologists.

IVF Pause

With IVF services paused at locations throughout Alabama, the immediate impact for IVF patients has been an “insurmountable amount of stress,” said Maryanna Basic, a former fertility patient and the founder and CEO of Fertilitywise, a platform that provides educational resources and support for people facing infertility challenges.

“You’re wondering now, ‘what do I do with these embryos? Do I transfer them?” Basic said in an interview.

Coordinating this transport means costs added onto what patients are already paying for IVF treatment, Basic said. Many insurance plans don’t cover fertility care, and IVF and other assisted reproductive technologies can range from $10,000 to $18,000 per cycle, according to RESOLVE: The National Infertility Association.

While some services have reportedly paused their shipping services, Indiana-based IVF CRYO said in a Feb. 23 statement that it will “continue to service patients and clinics in the state of Alabama regardless of the increased legal complexity and risk that our business now take on.”

Both chambers of the Alabama legislature passed measures Feb. 29 that would provide legal protections to clinics offering IVF services, and they are expected to approve final language to send to the governor’s desk as early as this week.

Some patients are likely to try to continue their IVF treatment outside of Alabama, largely because the scope of the legislation is unclear, said Ronald G. Blum, a litigation partner at Manatt, Phelps & Phillips LLP, who represents clients in complex criminal and civil liability matters.

“If I were in Alabama, I would be concerned about doing IVF treatments there” and risk being “the person where there’s a test case about the scope of that legislation,” Blum said in an interview.

Legal Limbo

While some states have laws protecting reproductive health services, the ruling from the Alabama Supreme Court is forcing fertility patients and their health-care providers to ask questions on whether the destruction of an unimplanted embryo could be prosecuted as criminal conduct, legal analysts say.

A total of 21 states and the District of Columbia have laws shielding abortion services, and some are “worded quite broadly” and “provide a lot of protection,” Blum said.

The shield law in Massachusetts, for example, includes “assisted reproduction” in the state’s protected “reproductive health care services.” In Colorado, where abortion is also protected, a 2022 law states that “a fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of the state.”

But it’s unclear whether the transport of frozen embryos was considered when these shield laws were enacted, Blum said.

One legal question facing patients and their providers is whether moving a frozen embryo could “be viewed as culpable conduct if something happens to the embryo in the transferring process,” Meegan said.

Another concern is whether a clinic has the authority to “decide to move the embryos out of state,” Meegan said.

“Do you need releases from one or both parents? What if there’s a divorce or custody dispute?” she questioned.

Dov Fox, director of the Center for Health Law Policy & Bioethics at the University of San Diego School of Law, agreed the Alabama ruling could lead to legal disputes between separated or divorced couples who have differing views on whether to implant or destroy a frozen embryo—especially if one of these individuals moved out of state.

“Parties favoring implantation over discard may seek to shop for a forum that’s more protective of embryos or less—even if a forum-shopper’s preferred outcome would override earlier agreements between the parties,” Fox said.

Deterring Treatment

Legislators and state officials are seeking to provide assurance that IVF care would be protected in Alabama, but the uncertainty and lingering legal questions means patients and their providers are less likely to continue treatments, attorneys say.

Alabama Attorney General Steve Marshall (R), who is involved in federal litigation over whether his office can prosecute individuals who travel out of state for abortions, has “no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers,” Chief Counsel Katherine Robertson said in an emailed statement.

Despite this commitment from the attorney general, the fear of potential prosecution is likely to be enough of a deterrent, Blum said.

In a scenario where an embryo is being transported and it’s accidentally destroyed in transit, based on the Alabama ruling “there is such a thing as an extra uterine child, and arguably, there could be a criminal prosecution for harming an embryo,” Blum said.

Meegan said there have been requests for professional groups like ACOG to provide guidance on what care is legally permissible under state abortion and reproductive health restrictions. But developing this guidance is a difficult task, she said.

“The fact of the matter is these medical emergency exceptions or protocols that you might create in the context of IVF are not going to cover all of the different situations that come up,” she said.

The long-term hope is that courts and state officials allow IVF care to continue unimpeded, Basic said.

“I’m hoping that they will allow doctors to be doctors and not have politics get involved with the treatment of patients,” Basic said.