IVF Clinics Stunned as Court Deems Frozen Embryos Are People (1)

An unprecedented ruling from the Alabama Supreme Court stating that frozen embryos can be considered people under state law has thrust the question of when life begins back into the national spotlight and sparked concerns among critics that other states could seek to impose similar standards.

Fertility clinics in the state are still grappling with the practical implications of the ruling, which shook the reproductive rights community. While the immediate concern has been for clinics and prospective parents in Alabama, legal and health experts say they expect the decision to reignite the debate over how to define “personhood” in reproductive health care. Some anti-abortion advocates have already called for action from other states.

The decision was handed down in two wrongful death lawsuits filed by three sets of parents whose frozen embryos were accidentally destroyed while being stored at a fertility clinic in Mobile. A judge had dismissed the claims, ruling the embryos don’t meet the definition of a person. But Alabama’s high court reversed that order Friday and said any “unborn child” is a person under state law, “regardless of that child’s viability or stage of development.”

“This is part of a much longer struggle over the personhood of fetuses and embryos that goes back to the 1960s and has really driven the anti-abortion movement,” said Mary Ziegler, a law professor at the University of California at Davis who specializes in reproductive rights. “Other states that have very strong policies on protecting embryos or fetuses are likely to follow suit, especially if they have equally conservative state supreme courts.”

In Alabama, health care providers say the ruling will have an immediate chilling effect on doctors who offer fertility treatments. The University of Alabama at Birmingham said Wednesday it was pausing in vitro fertilization treatments after the ruling, citing concerns about possible prosecution or punitive damages. A second fertility clinic reportedly followed suit on Thursday.

Alabama already has a dearth of fertility care with only eight clinics across the state, according to data from the Centers for Disease Control and Prevention.

Read More: University in Alabama Pauses Treatment After Embryo Ruling

IVF is one technology in a broader class of fertility treatments that involves fertilizing a female egg outside the body. More than 400,000 assisted reproductive technology procedures — mostly IVF — were performed in the US in 2021, according to the CDC. A full cycle of IVF takes two to three weeks, but the chances of successful conception that leads to live birth after a single IVF cycle remains low.

With the goal of a successful pregnancy, embryologists will frequently fertilize several embryos during the treatment. Older patients will often receive more transferred embryos, accordingto the Mayo Clinic. Any embryos that aren’t used in an IVF cycle can be frozen for later use, donated or discarded.

‘Personhood’ Debate

The question of when life begins has underpinned the national debate over abortion, particularly when legislators and judges consider whether to impose limits on the procedure based on the gestational age of a fetus. At least 11 states already have laws or policies that afford certain protections or legal rights to unborn fetuses, and others have considered such action in the wake of the US Supreme Court ruling in 2022 ending federal constitutional protections for abortion and letting states set limits on the procedure.

But the Alabama ruling looks to be the first time a court has said that frozen embryos used for IVF treatments are legally considered children.

Alabama State Capitol in Montgomery, Alabama.

Photographer: Andi Rice/Bloomberg

Specifically, the court said that a state law allowing parents to sue over the death of a minor child “applies to all children, born and unborn, without limitation.” In the case in question, frozen embryos belonging to three couples were accidentally destroyed when a patient being treated elsewhere at the medical center entered the fertility clinic and removed several embryos from their storage.

The three sets of parents sued the clinic for negligence and breach of contract — in addition to asserting claims under Alabama’s Wrongful Death of a Minor Act. Now that the Alabama Supreme Court has ruled that frozen embryos are considered children under the act, the couples’ lawsuit against the clinic can proceed.

Political Fallout

It is unlikely that the ruling can be appealed to the US Supreme Court, because it is narrowly tailored to matters of state law in Alabama, according to Ziegler. But it won’t be the last word on the subject in this case or any other.

The issue is politically fraught for Republicans, who have struggled with voters over abortion restrictions since Roe v. Wade was overturned. Already, prominent Republicans were being asked for their views on the matter. GOP presidential candidate Nikki Haley said she considers frozen embryos created through IVF to be “babies,” during an interview with NBC News on Wednesday. Haley said her son, now 22, was conceived via artificial insemination.

“When you talk about an embryo, you are talking about, to me — that’s a life — and so I do see where that’s coming from when they talk about that,” Haley said.

Later, during an appearance on CNN, Haley said her comments didn’t mean that she agrees with the Alabama ruling.

Question for Courts

The decision is also reverberating in an ongoing fight over personhood playing out in Florida, where the state’s supreme court is reviewing a 2024 ballot initiative to amend the state’s constitution to include protections for abortion.

During oral arguments in the case this month, Florida Supreme Court Chief Justice Carlos G. Muñiz asked whether the state constitution’s existing guarantee that all “natural persons” be “equal before the law” can apply to fetuses.

Read More: Embryo Errors, Clinic Floods: The Risks of the IVF Business

On Monday, Liberty Counsel, one of the groups seeking to block the ballot measure affirming abortion rights, filed a notice with the Florida Supreme Court alerting the judges to the ruling in Alabama.

“Florida’s Constitution, like Alabama’s, affirms ‘that an unborn child qualifies as a human life, a human being, and a person,’” Liberty Counsel said in a press release.

Lila Rose, president and founder of the anti-abortion organization Live Action, said the “United States Supreme Court should take notice” of the Alabama decision.

The ruling “rightly acknowledged the humanity of unborn children created through in vitro fertilization and is an important step towards applying equal protection for all,” Rose said in a statement.

Progyny Inc., a a fertility benefits management company based in New York, saw its shares fell as much as 6.8% on Thursday.

“While Alabama itself is likely not that meaningful from a patient volume point of view, there are concerns that the ruling can encourage other states with strict abortion bans to pursue IVF restrictions,” said Truist Securities analyst Jailendra Singh.

(Updates with political context in the 14th paragraph and company stock price in 23rd paragraph)

--With assistance from Kelsey Butler, Jackie Davalos, Riley Griffin, Mathieu Benhamou and Monique Mulima.

To contact the reporters on this story:
Madlin Mekelburg in Austin at mmekelburg@bloomberg.net;
Jemima Denham in New York at jdenham19@bloomberg.net

To contact the editors responsible for this story:
Wendy Pollack at wpollack@bloomberg.net;
Misyrlena Egkolfopoulou at megkolfopoul@bloomberg.net

Steve Stroth, Pierre Paulden

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