Fallout continues in the wake of the Alabama Supreme Court’s ruling last week that frozen embryos are children – an unprecedented decision that critics say could have a chilling effect on access to IVF treatments in the state.
Here are the latest developments:
A bipartisan effort is underway in the Alabama House and Senate to draft “clarifying” legislation that would “protect” in vitro fertilization treatments following the court’s ruling, state legislative sources told CNN.
Republican state senators are soon expected to file similar legislation, one source said, but they were unsure of the exact timing.
The lawmakers’ efforts come as medical experts and critics fear the court’s first-of-its-kind decision – which can put those who discard unwanted embryos at risk of being held liable for wrongful death – could have a profound effect on fertility treatment operations in the state and devastating ramifications for people hoping to build their families through IVF.
Alabama AG won’t prosecute IVF families
Alabama Attorney General Steve Marshall weighed in on the issue on Friday. Marshall said he “has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers,” in a statement from Chief Counsel Katherine Robertson.
Marshall’s statement comes a week after the state Supreme Court ruling embryos – whether they’re within or out of a uterus – are children and would be protected under Alabama’s Wrongful Death of a Minor Act, which allows parents to sue for punitive damages when their child dies.
Trump says he supports IVF after ruling
Former President Donald Trump said in a Truth Social post Friday that he supports the availability of IVF. He also called on the Alabama legislature to “act quickly to find an immediate solution to preserve the availability of IVF in Alabama.”
“We want to make it easier for mothers and fathers to have babies, not harder! That includes supporting the availability of fertility treatments like IVF in every State in America,” Trump said in the post.
However, the former president did not weigh in on the court’s decision during on camera remarks last night to religious broadcasters.
Clinics are halting some IVF programs
Already, at least three fertility clinics in Alabama have halted certain IVF treatment programs amid concerns their medical personnel could be at legal risk.
The ruling “has sadly left us with no choice but to pause IVF treatments for patients,” the Center for Reproductive Medicine at Mobile Infirmary said in a statement Thursday, noting it will halt treatments on Saturday “to prepare embryos for transfer.”
Earlier Thursday, Alabama Fertility’s Birmingham clinic said it had “paused transfers of embryos for at least a day or two.”
And the University of Alabama at Birmingham health system said Wednesday it was halting IVF treatment due to legal concerns for its patients and doctors.
Impact of Alabama ruling on cancer patients
The American Cancer Society and its advocacy affiliate, the American Cancer Society Cancer Action Network, said in a statement Friday they are deeply concerned about the Alabama Supreme Court ruling’s effect on cancer patients, survivors and their families.
“Some cancer treatments can cause infertility, and cancer patients and survivors often rely on IVF to build families after treatment,” Karen E. Knudsen, CEO of both groups, said in the statement.
Knudsen added the ruling especially affects newly diagnosed adolescents and young adults with cancer, as it threatens “a person’s ability to preserve fertility prior to initiating cancer treatment or have children after undergoing treatment.”
Patients are rushing to find alternative care
Gabrielle Goidel was days away from having her eggs retrieved when her Alabama clinic said it would still perform the procedure but couldn’t guarantee being able to make, store or ship embryos.
“It was absolutely my worst fear,” Goidel told CNN as she and her husband were planning a last-minute trip to Texas in hopes of having the procedure done there.
The couple plan to travel between their home in Alabama and Texas, where they have family, so they can get the reproductive care they need, Goidel said, noting the travel costs would be significant.
Kelly Belmont, who has also been undergoing IVF treatment in Alabama said the court’s ruling has been “consuming my life completely.”
“We’ve already invested so much time and money and just physical and emotional anguish into this process, and to think that it could have all been for nothing and that we could be ending our journey to be able to have children – it’s absolutely terrifying,” Belmont told CNN.
Belmont’s fertility clinic is continuing all treatments for now, she said, but she and her husband are fearful that may change.
“I’m just trying to hold myself together emotionally,” Belmont said. “It’s so stressful.”
Even families who don’t live in Alabama are keeping a nervous eye on what happens next.
Julie Eshelman and her husband conceived their first child through IVF and hope to have the option to use the process again. But the military family faces the possibility of being stationed in Alabama, leaving Eshelman and her husband to consider not moving their embryos to the state if they relocate.
“I don’t even know that I would actually even think about moving them to a state like Alabama, given the current climate, just because I know that they’re safer where they’re at right now,” Eshelman said.
Critics fear significant ripple effect
Medical experts and critics have expressed concern the ruling could have widespread consequences for those providing or seeking fertility treatments in Alabama – and warn it may soon have profound impacts elsewhere in the country.
They say it could send liability costs skyrocketing, making fertility treatment prices prohibitive for many families; it could discourage medical providers from performing infertility treatments in fear of being held liable each time an embryo does not turn into a successful pregnancy; and it could mean parents will now be forced to pay for lifelong storage fees of embryos they will never be allowed to discard, even if they don’t want any more children.
Critics of the ruling also worry it has created a roadmap for groups and legislators across the country who may wish to target fertility treatments.
“You now have a (state) Supreme Court very emphatically say that a frozen embryo is a person and we’re going to see now other states trying to codify that,” said Barbara Collura, president and CEO of the patient advocacy organization RESOLVE: The National Infertility Association.
At this point, the US Supreme Court is unlikely to review the Alabama ruling because it doesn’t include an interpretation of the US Constitution or federal law.
The majority ruling in this case rested solely on the justices’ interpretation of state law and an amendment to Alabama’s constitution.
“The US Supreme Court’s ability to review state supreme court decisions is limited to decisions that turn on a question of federal law,” CNN Supreme Court analyst and professor at the University of Texas School of Law Steve Vladeck said. “Here, the issue is how Alabama is interpreting its own state constitution.”
How we got here
The Alabama ruling stems from two lawsuits filed by three sets of parents who underwent IVF procedures to have babies and then opted to have the remaining embryos frozen.
The court said embryos – whether they’re within or out of a uterus – are children and would be protected under Alabama’s Wrongful Death of a Minor Act.
The court in its majority opinion nodded to a 2018 amendment to the Alabama constitution which provides protections for “the rights of the unborn child,” including the right to life.
The Medical Association of the State of Alabama, which weighed in prior to the court’s decision, warned the ruling would create an “enormous potential for civil liability” for fertility specialists, because embryos can be damaged or become unsuitable for pregnancy at any time during an IVF process, including when they are being thawed.
The decision could also mean people are unable to discard embryos if they no longer wish to use them, requiring them to be stored in perpetuity – even if one or both of the parents die, the association said.