Alabama Supreme Court Decision Raises Questions About the Future of Fertility Care

By: Cate Bikales

Edited by: Isabella Canales and Isabel Gortner

Note: This article was written prior to Mar. 6, when Alabama’s Republican governor Kay Ivey signed a bill into law that aims to protect IVF patients and providers from the legal liability raised by the state Supreme Court’s ruling that frozen embryos are considered children. The following day, Alabama clinics resumed IVF treatment. 

An Alabama Supreme Court ruling in mid-February that frozen embryos created through in vitro fertilization (IVF) are considered children under state law is already impacting fertility care across the state and could have detrimental impacts on women’s health care nationwide.    

Just days after the decision, three IVF-providing clinics in the state suspended services as they grappled with the potential legal repercussions of the decision. [1] 

The issue made its way to Alabama’s high court after three families sued a fertility clinic when an intruder removed the plaintiffs’ frozen embryos from a cryogenic nursery and dropped them on the floor, destroying the embryos. The families sued for wrongful death under the state’s Wrongful Death of a Minor Act. [2] “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in the majority opinion issued on Feb. 16. [3]  

In a post-Roe world filled with uncertainty about women’s rights, many are left wondering whether this decision means the right to fertility care will be the next to go. 

Indeed, the majority decision cited anti-abortion language that was added to the state constitution in 2018 to justify the ruling: “It is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” [5] Chief Justice Tom Parker’s concurring opinion reflected a similar sentiment, while also referencing his religious beliefs to back up his pro-life stance. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” he wrote. [6] 

Abortion is currently prohibited at all stages of pregnancy in Alabama. [7] White House press secretary Karine Jean-Pierre said that the ruling is exactly the “type of chaos” the Biden Administration expected when the Supreme Court overturned Roe v. Wade in 2022, which “paved the way for politicians to dictate some of the most personal decisions families can make.” [8] In his dissenting opinion, Justice Greg Cook argued that no court anywhere in the country has reached the conclusion the majority reaches, adding that it “almost certainly ends the creation of frozen embryos through [IVF] in Alabama.” [9]

The University of Alabama Birmingham Health System, which includes the largest hospital in the state, was the first to announce its decision to suspend treatment following the ruling. Alabama Fertility and the Center for Reproductive Medicine at Mobile Infirmary — the clinic sued in the court case — quickly followed. [10] “We have made the impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists,” Alabama Fertility said in a statement on social media on Feb. 22.  “[We] will not close. We will continue to fight for our patients and the families of Alabama.” [11]

A recent Pew Research survey found that 42% of American adults say they have used, or know someone who has used fertility treatments. [4] During IVF, mature eggs are surgically removed from the ovary and fertilized within a lab. The fertilized egg, called an embryo, is then implanted into the uterus. Unused embryos can be frozen for later use or discarded. [12] While the Alabama decision does not make IVF illegal, it does bring up many questions. How can IVF continue if it is illegal to destroy an embryo? Even if IVF does continue, it is likely costs will increase significantly, and access will decrease. [13] 

“This ruling has profound implications far beyond Alabama’s borders,” the advocacy group RESOLVE: The National Infertility Association said in a statement on social media. “Every American who wants or needs access to family building options like IVF should be deeply concerned about this development and the precedent it will set across the country.” [14] 

However, recent efforts to condemn the Alabama ruling by both political parties show that there may be hope for the future of fertility care. Many Republican senators, particularly those running for re-election this year, are urging lawmakers and candidates to express support for IVF. [15] Former President Donald Trump also expressed an opinion in favor of IVF on Truth Social: “Like the OVERWHELMING MAJORITY of Americans, I strongly support the availability of IVF for couples who are trying to have a precious baby.” [16]

Republican presidential candidate Nikki Haley is one of few Republicans who have spoken openly in support of the Alabama decision, saying that “embryos, to me, are babies.” [17] 

Leaders in Alabama, including Gov. Kay Ivey (R), say they are working to defend and protect access to IVF in the state. “The Legislature will soon consider a solution that preserves our Alabama values by empowering IVF clinics to continue assisting couples in bringing new life into the world,” said House Republican Speaker Nathaniel Ledbetter. [18] 

Until that clarification comes, IVF patients and providers will continue to be left in the dark about the future of fertility care in Alabama and beyond.

Notes:

1. Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

2. LePage v. Center for Reproductive Medicine, P.C.

3. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling) https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a76-5360b2e8af13/cms/case/343D203A-B13D-463A-8176-C46E3AE4F695/docketentrydocuments/E3D95592-3CBE-4384-AFA6-063D4595AA1D. 

4. Carolina Aragão and Isabel Goddard. “A growing share of Americans say they’ve had fertility treatments or know someone who has.” Pew Research Center, September 14, 2023. https://www.pewresearch.org/short-reads/2023/09/14/a-growing-share-of-americans-say-theyve-had-fertility-treatments-or-know-someone-who-has/. 

5. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

6. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

7. “Alabama,” Center for Reproductive Rights, Accessed February 23, 2024, https://reproductiverights.org/maps/state/alabama/#:~:text=On%20June%2024%2C%202022%2C%20Alabama,%C2%A7%2026%2D23H%2D4.

8. Chandler, Kim. “Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling.” AP News, February 21, 2024. https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca. 

9. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

10. Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

11. Alabama Fertility Specialists, “Dear patients of AFS…,” Facebook, February 22, 2024, https://www.facebook.com/alabamafertility/posts/pfbid037BWz6srp8KUT44H6nDrXrZ8ycKm5Vny9PzuYh8dzfoXd5KBqPaYgug2YURWFhfDHl. 

12. “In vitro fertilization (IVF),” Mayo Clinic, Accessed February 23, 2024, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716#:~:text=During%20in%20vitro%20fertilization%2C%20eggs,into%20the%20uterus%20(C). 

13. Millhiser, Ian. “The Alabama Supreme Court opinion holding that embryos are children, explained,” Vox, February 20, 2024. https://www.vox.com/2024/2/20/24078513/supreme-court-alabama-ivf-roe-wade-dobbs-abortion-child-embryo. 

14. RESOLVE (@resolveorg), “The Alabama Supreme Court recently ruled…,” Instagram, February 19, 2024, https://www.instagram.com/p/C3iDMh_uguO/?hl=en&img_index=4. 

15. The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

16. Megan Messerly and Jessica Piper. “Trump says he supports IVF after Alabama court decision,” Politico, February 23, 2024. https://www.politico.com/news/2024/02/23/trump-says-he-supports-ivf-after-alabama-court-decision-00142994 

17. Alex Rhoades and Ali Vitali. “Nikki Haley sides with Alabama Supreme Court on IVF ruling: 'Embryos, to me, are babies',” NBC News, February 21, 2024. https://www.nbcnews.com/politics/2024-election/nikki-haley-sides-alabama-supreme-court-ivf-ruling-embryos-are-babies-rcna139819. 

18. The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

Bibliography:

“Alabama,” Center for Reproductive Rights, Accessed February 23, 2024, https://reproductiverights.org/maps/state/alabama/#:~:text=On%20June%2024%2C%202022%2C%20Alabama,%C2%A7%2026%2D23H%2D4.

Alex Rhoades and Ali Vitali. “Nikki Haley sides with Alabama Supreme Court on IVF ruling: 'Embryos, to me, are babies',” NBC News, February 21, 2024. https://www.nbcnews.com/politics/2024-election/nikki-haley-sides-alabama-supreme-court-ivf-ruling-embryos-are-babies-rcna139819. 

Azeen Ghorayshi and Roni Caryn Rabin. “Alabama Rules Frozen Embryos Are Children, Raising Questions About Fertility Care,” The New York Times, February 20, 2024. https://www.nytimes.com/2024/02/20/health/ivf-alabama-abortion.html. 

Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

Carolina Aragão and Isabel Goddard. “A growing share of Americans say they’ve had fertility treatments or know someone who has.” Pew Research Center, September 14, 2023. https://www.pewresearch.org/short-reads/2023/09/14/a-growing-share-of-americans-say-theyve-had-fertility-treatments-or-know-someone-who-has/. 

Chandler, Kim. “Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling.” AP News, February 21, 2024. https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca. 

“In vitro fertilization (IVF),” Mayo Clinic, Accessed February 23, 2024, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716#:~:text=During%20in%20vitro%20fertilization%2C%20eggs,into%20the%20uterus%20(C). 

Megan Messerly and Jessica Piper. “Trump says he supports IVF after Alabama court decision,” Politico, February 23, 2024. https://www.politico.com/news/2024/02/23/trump-says-he-supports-ivf-after-alabama-court-decision-00142994 

Millhiser, Ian. “The Alabama Supreme Court opinion holding that embryos are children, explained,” Vox, February 20, 2024. https://www.vox.com/2024/2/20/24078513/supreme-court-alabama-ivf-roe-wade-dobbs-abortion-child-embryo. 

Moniuszko, Sara. “Alabama court ruled frozen embryos are children. Experts explain potential impacts to IVF treatment,” CBS News, February 21, 2024. https://www.cbsnews.com/news/alabama-frozen-embryos-children-experts-ivf-fertility/.

Shoshana Dubnow and Stephanie Sy. “How an Alabama Supreme Court ruling that frozen embryos are children impacts IVF,” PBS, February 21, 2024. https://www.pbs.org/newshour/show/how-an-alabama-supreme-court-ruling-that-frozen-embryos-are-children-impacts-ivf.

The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

Weixel, Nathaniel. “How Alabama’s frozen embryo decision is shaking the nation: What you need to know,” The Hill, February 21, 2024. https://thehill.com/policy/healthcare/4481856-how-alabamas-frozen-embryo-decision-is-shaking-the-nation-what-you-need-to-know/.