After seemingly endless negative pregnancy tests and a few early losses after rounds of alternate fertility treatments, I felt that in-vitro fertilization (IVF) was my only hope of becoming a mother. As I saw others conceiving naturally, or succeeding relatively quickly with less invasive assisted methods, my longing and desperation for motherhood only grew. I frequently drove three hours to Philadelphia for specialized monitoring and checked my patient portal for time-sensitive updates on how my body was responding to medication. I was nauseous and lethargic after a successful egg retrieval surgery, a procedure usually involving anesthesia to harvest eggs to be fertilized outside of the body.
In October of 2021, freshly out of thousands of dollars and prepared to inject myself with even more medication and hopefully sustain a pregnancy, I anxiously waited for my frozen embryo transfer. After a closely monitored pregnancy and induction, my son was born in July of 2022. After all that I had been through, my son was finally safe in my arms.
The grief of infertility and the treatment of infertility should not be taken lightly by healthcare providers and policymakers. For thousands of people just like me, IVF is sometimes the only way they can access parenthood. While IVF is complex and expensive, sometimes with complications to mother or baby, it is a process that so many people are willing to undergo. They know the risks, but are hopeful for what IVF could bring to their lives. Without the technology of IVF, which has been refined since its creation in the 1970s, I would not have my child or the opportunity to have another.
Alabama Supreme Court issues ruling stating embryos are legally considered “children”
On February 16th, the Alabama Supreme Court issued a ruling that embryos would be legally considered “children” in the same sense of living children when it came to legal prosecution and potentially custody, instead of normally being legally recognized as “property with the potential for human life.” This was in response to a case where patients who had frozen embryos stored onsite at an Alabama fertility clinic had their embryos mistakenly handled by another patient. Their frozen embryos, which require a delicate process of properly dethawing and cannot live unless either implanted in a uterus or “suspended” in liquid nitrogen, were brought out of their nitrogen storage tanks and dropped, destroying them instantly.
No one cares more about embryos than IVF patients, and it is devastating to transfer an embryo only to learn you are not pregnant and your body will discard the cells naturally. Your hopes and dreams for motherhood and for a child are in that microscopic grainy photograph of an embryo that your clinic gives you before transfer. Anything happening to them is upsetting. Many clinics, such as my own, have a clause stating that you cannot hold the clinic liable for embryos failing to thaw correctly, nitrogen tank failure, or many other things that a clinic does not have much control over. The plaintiffs in this case were understandably upset about what happened to their embryos and what that could mean for their families, but their outcome yielded results that they may not have considered.
In-vitro fertilization Clinics in Alabama suspend treatment in response to ruling
Fertility specialists in most IVF clinics across Alabama instantly suspended IVF and embryo transfers after the ruling, worried that they would be held legally liable for the death or destruction of embryos which is a natural part of many IVF cycles. Some embryos die after thawing, and many embryos are carefully discarded and destroyed when people are done having children if they don’t want to donate their embryos to other couples or to scientific study.
A ruling stating that a person could technically be held liable for the death of a child by an embryo not developing properly and dying just like it could in the womb meant that providers were at a standstill. Many who had frozen embryos stored at Alabama clinics began immediately exploring enormously expensive options to ship their frozen embryos to a different clinic in a state where they could move forward, but many companies said they could not help. They did not want to be held liable in case anything happened to the embryos from Alabama in transit.
Women were suddenly no longer in control of their bodies or their family planning in this way. With the overturn of Roe v Wade in 2022, many spoke out about the effect that ruling could have on limiting or eradicating IVF due to differing views on conception and embryos.
New ruling resumes treatment in Alabama, but what does this mean for in-vitro fertilization?
Many people in the infertility community, including some who I knew personally, did not hold back from speaking out about what that ruling meant for their lives. Many expressed feeling heartbroken, devastated, and angry about losing access to building their families and that the initial ruling made an already complicated and expensive process so much moreso, with families saying they were considering moving states where they could pursue treatment. My own clinic, CNY Fertility, issued a statement for those seeking IVF cycles outside of Alabama during a “terrifying and uncertain time” stating that “we are here for you.”
Finally, two weeks later, the Alabama Supreme Court introduced new legislation stating that fertility doctors and clinics would not be held liable for the death or destruction of embryos, meaning that IVF resumed in Alabama starting almost immediately after it was passed. Many fear that this initial ruling of considering embryos as the same as children will spark widespread similar bills in other southern states, such as the rapid succession of abortion bans in Texas and Tennessee. Does IVF need to be protected at the national level so that it doesn’t vary by state? While I do not have a clear answer, we must continue to educate about the importance of IVF and the distinction between embryos and living, breathing children.
My other embryos are important to me. But I cannot let them become legally defined as children and no longer have autonomy over what happens to them. Similar legislation stating that fertility clinics cannot be held liable for the destruction of embryos could be enacted in other states. That may not be enough to protect a procedure that some people could not be parents without.
Rachel Patterson