IIn the first decision of its kind, the Alabama Supreme Court ruled Friday that embryos are “ectopic children” — a term that could have widespread implications for anyone seeking or offering in vitro fertilization (IVF). The ruling has plunged IVF doctors and patients in Alabama into chaos and uncertainty as they scramble to untangle the practical implications of the sweeping ruling.
Patients continue to contact the Alabama clinic where Dr. Mamie McLean works with a version of the same question: Can we still safely become parents?
“They’re worried about what to do with their frozen embryos. They want to be the ones making the decisions about the best way to use their embryos – not the Supreme Court,” said McLean, who provides IVF as part of her work as a gynecologist at Alabama Fertility, which has three locations in the state. McLean said she has spoken to more than a dozen of her patients in the past 48 hours, but, “Frankly, because of the lack of guidance, we don’t know exactly how this translates to our care. .â€
Because every embryo created is now a person in the eyes of the law, the Alabama ruling puts several parts of the IVF process in legal jeopardy. Healthcare providers may no longer be able to freeze, thaw, transfer, or test embryos according to best medical practices. People also often create more embryos than they use, and it’s unclear whether Alabamians would ever have access to those embryos under the Supreme Court’s ruling.
The fallout could even pose an existential threat to IVF in Alabama, as providers and patients could flee the state rather than risk the liability resulting from the ruling.
“It is a nonsensical statement with devastating consequences for the health of the people of Alabama,” said Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine. “The court, of course, did not deign to address the real implications of their decision, but they are profound.”
During a typical IVF process, healthcare providers use medications to stimulate the ovaries to produce multiple eggs, which are then extracted. Experts in a laboratory fertilize the eggs with sperm to create embryos. Doctors can then transfer one or two embryos into the patient’s uterus, or freeze embryos for future use.
Keeping embryos frozen can come with financial and potential emotional costs for prospective parents. But the decision to thaw them now could also be legally risky.
“If you are a doctor or an embryologist working at that clinic, you are now ready to be charged with manslaughter or threatened with a wrongful death lawsuit because one of the embryos did not survive the freeze-thaw process. Tipton said.
If freezing is out of the picture, experts fear that providers will be forced to transfer all created embryos to patients. If one creates multiple embryos – as is common practice, to maximize the chances of success – a patient could become pregnant with twins, triplets or more, which could jeopardize their health.
“You would have a situation where the embryologist says, ‘Look, you have three embryos that look good, and we have no choice but to transfer all three. And that puts your health, your pregnancy and possibly the future health of your children at risk,” said Barbara Collura, president and CEO of Resolve: the National Infertility Association.
When someone is pregnant with multiple fetuses, they are more likely to give birth prematurely, which can then lead to lifelong health problems. The pregnant woman may also be at increased risk of hemorrhage during labor, preeclampsia, gestational diabetes, or cesarean section.
Maternal mortality rates are already staggeringly high in the United States. Between 2018 and 2021, the number of maternal deaths almost doubled, from 17.4 maternal deaths per 100,000 live births to 32.9. Black women are particularly at risk: in 2021, black women died 2.6 times more often than white women.
Alabama, along with Mississippi, has some of the worst maternal health rates in the country. The overall maternal mortality rate was 41.4 deaths per 100,000 births from 2018-2021.
IVF providers will sometimes freeze embryos and then send them to be tested for abnormalities, said Dr. Michael C Allemand, a gynecologist who works at the same clinic as McLean. The Supreme Court’s ruling jeopardizes their ability to do so, raising concerns about an increased rate of fetal abnormalities.
Women often will not become pregnant or will miscarry after an embryo transfer with an abnormality, Allemand said. However, he added, “It is certainly hypothetically possible that a woman could transfer an embryo that she wished she could have tested but didn’t,” Allemand said, “and then have a pregnancy that has a significant abnormality where she now has to decide what to do with it – and oh, by the way, that’s a challenge too, because so many states are now restricting women’s access to making those decisions.” €
More than a dozen states have passed near-total abortion bans, including Alabama.
None of the experts who spoke to the Guardian knew the specific consequences of Friday’s ruling. McLean and Allemand told them clinic is awaiting legal guidance, but has done so effectively so far continued to work normally.
According to Resolve, one in eight couples have difficulty getting or staying pregnant.
“Are we at a point where we need to move our entire practice out of state because we can no longer safely provide the quality or standard of care to which we hold ourselves?,” Allemand said. “Our patients in this state deserve the same opportunity to have a genetic child if they choose as any person in any other state.” And that is threatened by this.’
Several other states have moved forward with measures that provide embryos or fetuses with some degree of legal rights and protection. These types of measures, which seek to legislate so-called “fetal personhood,” are often the work of anti-abortion activists who believe that life begins at conception.
For example, Georgia passed a law that allows people to claim fetuses as tax dependents. But the Alabama Supreme Court is the first in the US to make a ruling so direct aim for IVF, which reproductive rights advocates have long warned against the crosshairs of the anti-abortion movement.
Gabrielle Goidel started taking medication to prepare her body for egg retrieval on Friday, the same day the Supreme Court ruled on “ectopic children.” When she heard the news of the ruling, she sent an indignant text message to her family.
“I think my exact words were, ‘I want to scream, I want to make a video, I want to message all my reps and tell them that I’m a real person and this is a decision that affects me. †said Goidel. “I feel like they were creating this, like some hypothetical embryos and hypothetical families, and they didn’t really see the consequences.”
Right now, she and her husband Spencer are in the IVF process, but they’re not sure if they’ll ever store their embryos in Alabama. They are no longer 100% sure they want to live in the state.
“I never thought IVF would be questioned,” Goidel said. “I thought IVF would be seen as starting a family.”