Alabama Supreme Court ruling could restrict fertility care in the state, experts say

The Alabama Supreme Court ruled this month that frozen embryos have the same legal protections as children—a decision that could have far-reaching consequences for fertility care in the state.

The court ruled in a 7–2 decision that frozen embryos, such as those used for in vitro fertilization (IVF), are protected under the Alabama Wrongful Death of a Minor Act. Justice Jay Mitchell wrote that the act “applies to all unborn children, regardless of their location.”

It’s unclear how fertility clinics could dispose of unused frozen embryos without violating the law, or what would happen if embryos didn’t survive transfer into a patient’s uterus.

“By insisting that these very different biological entities are legally equivalent, the best state-of-the-art fertility care will be made unavailable to the people of Alabama,” Paula Amato, president of the American Society for Reproductive Medicine (ASRM), said in a statement. “No healthcare provider will be willing to provide treatments if those treatments may lead to civil or criminal charges.”

Amato added that “modern fertility care will be unavailable to the people of Alabama, needlessly blocking them from building the families they want.”

Physicians may also avoid going to Alabama for medical training or to open a practice if they can’t provide IVF treatment, and existing clinics could be forced to “choose between providing suboptimal patient care or shutting their doors,” Amato said.

Sean Tipton, chief advocacy and policy officer at the ASRM, told Healthcare Brew that at least one of Alabama’s five fertility clinics has been told by the hospital they’re affiliated with not to start any new IVF cycles until the hospital can sort out the implications of the ruling.

In addition, the University of Alabama at Birmingham’s Division of Reproductive Endocrinology and Infertility announced on February 21 that it plans to pause IVF treatments while it evaluates the supreme court decision.

“We are saddened that this will impact our patients’ attempt to have a baby through IVF, 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,” health system spokesperson Savannah Koplon said in a statement.

Tipton added that it’s likely the only way fertility providers in Alabama will get clarification on the implications is through test cases.

“To find out if a physician can be charged with homicide for losing an embryo, we might have to wait and have a physician charged with a homicide, and nobody wants that,” he said. “No IVF physician wants to be the name of the case that determines if these kinds of charges can be brought against them.”

Resolve: The National Infertility Association said in a statement that the ruling is a “terrifying development for the one in six people impacted by infertility who need [IVF] to build their families.”

“One thing is certain: This ruling has profound implications far beyond Alabama’s borders,” leaders from Resolve said in a statement. “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.”

A significant share of the US population relies on IVF or other forms of fertility services for family planning. In 2021, more than 238,000 people underwent assisted reproductive technology cycles, the main form of which is IVF, according to the CDC.

“The choice to build a family is a fundamental right for all Americans, regardless of where they live,” Amato said in a statement. “We cannot, therefore, allow this dangerous precedent of judicial overreach with national implications to go unchecked.”

This article was updated to reflect the University of Alabama at Birmingham’s announcement.