Alabama’s Embryo Ruling Challenges IVF Practices Nationwide

Studies have estimated that more than one million embryos are stored across the U.S.
Studies have estimated that more than one million embryos are stored across the U.S.

Summary

The state supreme court’s ruling that frozen embryos are children exacerbates a national dilemma: What to do with the more than one million embryos in storage.

The Alabama Supreme Court’s ruling that frozen embryos are children exacerbates a national dilemma: What to do with the more than one million embryos in storage across the U.S.

The quandary is a byproduct of increasing demand for reproductive technology as more people delay childbearing to older ages, or have children on their own or with partners of the same gender. In vitro fertilization, introduced in clinics more than 40 years ago, is now a mainstay of family-building that accounts for some 2% of U.S. births.

In the early days, doctors might transfer four or more embryos at once into a woman’s uterus to achieve a pregnancy. There weren’t usually embryos left to freeze. Today, better technology means clinics can transfer one embryo at a time with more expectation a pregnancy will result. When people are done having children, they often end up with embryos in the freezer—and difficult decisions about their fate.

Fertility doctors and ethicists have debated for years what rights embryos merit. The Alabama Supreme Court’s decision, two years after the U.S. Supreme Court withdrew the constitutional right to abortion and upended reproductive law in much of the country, is giving the debate broader resonance.

“The social space of what an embryo is to someone can be wide and generous. In the law, it becomes a bright line of interpretation that has massive consequences," said Risa Cromer, assistant professor of anthropology at Purdue University who has written about frozen embryos and reproductive technology.

Alabama’s Supreme Court ruled last week that frozen embryos can be considered children under the state’s Wrongful Death of a Minor Act, which allows parents to recover punitive damages for the death of a child. The case was brought by several couples whose embryos were destroyed when a patient wandered into a fertility clinic, removed stored embryos and dropped them on the floor. The court wrote that everyone involved agreed an “unborn child" is a person. The disagreement was over whether the state’s law makes an exception for embryos outside a uterus when they are killed. The court said nothing in the law prevents it from applying to frozen embryos.

Alabama is the first state to decide frozen embryos should be considered unborn children for the purposes of civil wrongful death acts, said Susan Crockin, an adjunct professor at Georgetown University Law Center. The decision doesn’t directly affect other states’ fertility doctors. But other states might see the ruling as a path to recognize frozen embryos as legal children for the purposes of wrongful death or otherwise under state law, she said.

TMRW Life Sciences Inc., which stores eggs and embryos, has fielded calls from people who want to transfer their frozen embryos from Alabama to its facilities in Colorado and New York. TMRW will accept embryos from Alabama, said Louis Villalba, TMRW’s chief executive.

“Outside of the storage decision, we would not be able to provide any legal counsel to patients until there is clarity at the state level from Alabama about how and when they are going to enforce this," he said.

While studies based on national data reported by IVF clinics have estimated more than one million embryos are stored across the U.S., Villalba believes the total could be some five million. He based his tally on how many IVF cycles are performed annually, how many embryos are frozen and the number left in storage for more than five years. Some countries limit the time embryos can be stored to five or 10 years but not the U.S.

IVF clinics often ask patients what they want to do with unused embryos. Options include destroying them, allowing researchers to study them or donating them to other people trying to have children. Many people say one thing before starting IVF treatments then change their minds. Are the embryos future children? A cluster of cells? A symbol of the intense experience of infertility or the journey they took to become parents?

Many people simply can’t decide. They pay storage fees that can run $500 or more annually, sometimes for decades. Some clinics are running out of space to store them. When a large fertility practice, Boston IVF, contacted more than 1,000 patients in 2012-13 who hadn’t indicated what they wanted to do with frozen embryos in storage for more than a year, only a fifth responded.

“It’s such an emotional question for them," said Denny Sakkas, chief scientific officer at Boston IVF.

The American Society for Reproductive Medicine, which represents doctors and reproductive-medicine specialists, decried the Alabama court’s decision. ASRM is discussing legislative responses with clinics and doctors in Alabama, where some IVF clinics have paused IVF treatments due to the legal uncertainties.

“Even just having clarity for the providers would be incredibly helpful," said Sean Tipton, ASRM’s chief advocacy and policy officer.

ASRM has said embryos shouldn’t have the same legal or moral status as a person. But the group has said embryos have “special significance" and should be given “special respect."

The conversation over frozen embryos became more urgent as some clinics have run out of space or sought to move embryos to external freezer space. The fate of some leftover embryos has been settled by court decisions when divorcing couples disagree over what should be done with them.

Jennifer Johnson, a 41-year-old college professor in the Lansing, Mich. area, said she and her husband made five frozen embryos. Doctors transferred one into Johnson’s uterus a month ago, but it didn’t result in a pregnancy. “What that means to me I am still processing," she said.

She is concerned that after the Alabama decision there could be an attempt to do something similar in Michigan. “I don’t think it will affect my situation. At least now," she said.

Polling shows many Americans support fertility technology. Four in 10 adults said they have used fertility treatments or know someone who has, according to a 2023 Pew Research Center survey. That was up from 33% five years ago. The technology’s growing place in American life is clear in the experiences of politicians across the spectrum.

Former Vice President Mike Pence has talked about his wife’s IVF treatment. Nikki Haley, who is challenging former President Donald Trump for the Republican nomination this year, has said she used artificial insemination to have her son. Haley told CNN on Wednesday that an embryo is an unborn baby.

Sen. Tammy Duckworth (D., Ill.), who used IVF to have her two daughters, introduced legislation with Rep. Susan Wild (D., Pa.) in January that would establish a right to treatments including IVF.

President Biden on Thursday said the Alabama court’s decision was a direct result of the overturning of Roe v. Wade. Some antiabortion groups have sought tighter restrictions on the use and disposition of embryos since that decision.

Stephanie Armour contributed to this article.

Write to Amy Dockser Marcus at Amy.Marcus@wsj.com

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