Daily Briefing

How an Alabama Supreme Court decision could impact IVF


The Alabama Supreme Court on Friday ruled that frozen embryos qualify as people and that a person can be held liable for destroying them, a decision that experts say could have a significant impact on patients' ability to receive in vitro fertilization treatments. Advisory Board's Emily Heuser, Kaci Plattenburg, and Gaby Marmolejos outline three ways this ruling demonstrates the far-reaching implications of the Dobbs v. Jackson decision.  

Details on the ruling

The court's 8–1 ruling was in response to two lawsuits brought against a fertility clinic in Mobile, Alabama under the Wrongful Death of a Minor Act. In 2021, a patient at the clinic allegedly broke into a freezer, removed human embryos stored there, and then dropped them.

The clinic argued the plaintiffs lacked standing for the suits as parents because the embryos had not been transferred to a uterus — an argument a circuit court agreed with.

However, the Alabama Supreme Court ruled that "unborn children are 'children,'" and this also applies to frozen embryos.

The Wrongful Death of a Minor Act "applies to all children, born and unborn, without limitation," the court wrote. "It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding 'unborn life' from legal protection."

In 2018, Alabama voters passed a ballot measure granting fetuses full personhood rights; however, the measure did not mention frozen embryos.

It was unclear in the ruling whether the destruction of embryos at any point or for any purpose would be allowed, the Washington Post reports. In the ruling, the justices noted the plaintiffs had signed a contract agreeing that their embryos could be destroyed or donated to research if they were frozen for more than five years. However, since the trial court didn't consider those arguments, the Alabama Supreme Court didn't either.

In a dissenting opinion, Justice Greg Cook wrote that the ruling "almost certainly ends the creation of frozen embryos through in vitro fertilization in Alabama."

Cook added that it was not within the role of the court to "expand the reach of a statute and 'breathe life' into it by updating or amending it," noting that the Wrongful Death of a Minor Act was written in 1872 and wouldn't have taken the status of frozen embryos into account.

Reaction

In response to the ruling, the University of Alabama at Birmingham (UAB) health system announced Wednesday it was pausing all IVF treatments while it evaluated the court's ruling.

"We are saddened that this will impact our patients' attempt to have a baby through IVF," UAB said in a statement, "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."

UAB's Division of Reproductive Endocrinology and Infertility will continue to perform egg retrievals from women seeking fertility treatment. However, it won't combine the eggs with sperm in a lab for fertilization and allow embryos to develop for the time being. A spokesperson for UAB noted that embryo implantation procedures have also been paused.

Experts said the court's ruling could have significant implications for fertility treatments like IVF, and potentially contraceptives.

According to Dana Sussman, deputy executive director at Pregnancy Justice, in order to give a patient the best chance at a pregnancy, multiple embryos are created in the hopes that a patient can try again if a pregnancy attempt fails. Because of this, as many eggs are fertilized as possible and kept frozen. Now, after a patient becomes pregnant, what to do with the remaining embryos could be a very difficult choice.

On Tuesday, White House press secretary Karine Jean-Pierre said the ruling would cause "exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make."

Paula Amato, president of the American Society for Reproductive Medicine, said the court ruled "that a fertilized frozen egg in a fertility clinic should be treated as the legal equivalent of an existent child or fetus gestating in a womb."

Amato predicted that young doctors could stop going to Alabama to train or practice medicine following the ruling, and that fertility clinics could close if being open means running the risk of being brought up on civil or criminal charges.

"Modern fertility care will be unavailable to the people of Alabama," Amato said. (Rosenzweig-Ziff, Washington Post, 2/20; Bettelheim, Axios, 2/20; Choi, The Hill, 2/19; Rabin/Ghorayshi, New York Times, 2/20; Betts, New York Times, 2/21)


Advisory Board's take

The 3 biggest implications of Alabama's ruling on frozen embryos

By  Emily Heuser, Kaci Plattenburg, and Gaby Marmolejos 

In the days following the Alabama Supreme Court's ruling, the state's largest hospital, UAB, paused IVF as they assess how the decision will impact the practice of medicine. This demonstrates the far-reaching implications of the Dobbs v. Jackson decision, which overturned Roe v. Wade in 2022 — and hints at more changes to come in the reproductive space.

Who will feel the biggest impact from Alabama's ruling?

Immediate impact — as we've seen in the case of UAB — will be felt by IVF clinics and family reproductive healthcare providers as they navigate how the legal implications of the Alabama ruling will impact the day-to-day operations of their practice.  

Stakeholders that are involved with IVF providers — including egg donors, surrogates, sperm banks, genetic testing and counseling providers, and embryo storage providers — will also feel ripple effects from this ruling, including decreased business and proximity to lawsuits. 

The ruling also represents potential service loss for the patients and families who seek IVF support to have children — both in Alabama and in other states where abortion is prohibited, which could follow suit.  The longer-term impacts on patients will be variable. And while we won't know the extent of the impact for some time, we expect this ruling to impact reproductive care in different ways than the 2022 Dobbs decision. 

Because IVF is not well-covered by employer benefits, commercial insurance, and Medicaid, IVF is already skewed toward patients with the financial means to invest in this level of family planning. The new legal complexity adds a layer of disruption to the already complicated IVF process, bringing Dobbs v. Jackson to the doorstep of higher socioeconomic status individuals in a way that it previously hadn't. 

Importantly, IVF is a medical procedure not limited to infertility. Alabama's ruling is poised to impact patients with a variety of medical conditions — including cancer and genetic conditions — that seek IVF to preserve their reproductive abilities or to screen embryos for genetic and chromosomal abnormalities. 

3 ways this ruling demonstrates the ripple effects of Dobbs v. Jackson 

While the full implications of Alabama's ruling are yet to be seen, we outline three ripple effects of the decision on ob/gyn care — and how they are an extension of the landmark Dobbs v. Jackson ruling. 

1. Increased legal action against ob/gyn providers

Any provider that offers pregnancy or fertility care in a state with abortion restrictions can now be held liable for care delivered. This is especially true in states like Alabama, where providers that perform abortions can face felony charges — not people that receive abortions. 

Ob/gyns already face some of the highest malpractice premiums compared to other specialties. Before Roe v. Wade was overturned, nearly two out of three ob/gyns said they faced legal action at some point in their careers. 

With ob/gyns already facing declining revenues related to falling birth rates, additional legal restrictions are likely to drive these providers out of states with abortion-related legal risks, access challenges, and no caps on malpractice damages.

2. Restrained ob/gyn residency pipeline

Physicians place a premium on their autonomy — and the ob/gyn residency pipeline is already shifting because of the real and perceived limits on their clinical autonomy resulting from Dobbs. 

The Association of American Medical Colleges found states with near-total abortion bans saw a 10.5% decrease in ob/gyn applications from 2022 to 2023 — a shift that was likely driven by policies restricting ob/gyn medical training, since abortion procedures follow similar techniques for miscarriages and other pregnancy-related procedures. 

This also threatens training in reproductive endocrinology, since routine processes like genetic testing on embryos for fetal abnormalities during IVF care delivery are now under legal jeopardy in Alabama. 

If more states follow in Alabama's footsteps, we expect to see a further shift in the residency pipeline. 

3. Worsened disparities in access to pregnancy and reproductive care

Increased legal action against providers and reduced ob/gyn residents in states with abortion restrictions will threaten access to care. There was already a projected shortage of ob/gyns by 2030 and maternity care deserts have been rising nationwide. 

These restrictions will likely worsen the maternal health crisis by compounding existing racial and geographic disparities in pregnancy and reproductive care access across the country.

While courts and legislatures work to address the complex legal issues arising in the post-Roe landscape, real patients and providers are impacted on the ground immediately. To learn steps to protect your workforce strategy from the ongoing impacts of the Dobbs v. Jackson decision, check out this expert insight

As we continue to monitor the ripple effects from Dobbs v. Jackson, we'll be watching to see how changes in future interpretations will further impact reproductive care. 

Rae Woods contributed to this piece.


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