After the Supreme Court overturned Roe v Wade, it was just a matter of time before a state court would deem frozen embryos to be persons. The Alabama Supreme Court recently did just that (see BioNews 1228), and it will likely have devastating and unequal impacts on access to IVF – the process through which more than two percent of all children in the US each year are born. IVF almost inevitably produces excess embryos that the hundreds of thousands of patients who rely on this technology in the US may not want to use; indeed, there are an estimated 1.5 million frozen embryos in the US. Decisions like the Alabama ruling have a direct impact on the options people have to dispose of those embryos.
When Dobbs overturned Roe (see BioNews 1147), the Supreme Court focused on abortion. But the Court's repeated references to the 'unborn human being' and to the state's legitimate interest in 'respect for and preservation of prenatal life at all stages of development' suggested that the opinion could have an impact far beyond abortions, including decisions involving embryos created through IVF. The language in the Dobbs decision does nothing to discourage, and indeed invites, the decades-long efforts by the anti-abortion movement to fight for legal personhood of embryos, in addition to fetuses. Not surprisingly, the Alliance Defending Freedom – 'one of the leading Christian law firms' that seeks to protect 'the sanctity of life' and has supported lawsuits challenging access to abortion and contraception – hailed the decision as a 'tremendous victory for life!'
Until the Alabama decision, Louisiana was the only state that had legislation defining frozen embryos as legal persons. But now, the Alabama Supreme Court has declared that frozen embryos are persons for purposes of lawsuits under the state's Wrongful Death of a Minor Act (WDMA) – essentially establishing legal personhood for embryos.
The case involved a lawsuit against a fertility clinic for the accidental destruction of the plaintiffs' frozen embryos (see BioNews 1208). While all the parties agreed that a fetus in utero at any stage of development is a person under Alabama's wrongful death statutes, the issue was whether embryos outside the womb are also persons. Government officials in Alabama, and other states, have made representations that abortion bans will not affect IVF, but their abortion statutes do not always make that clear.
The Alabama Supreme Court decision relied on statutory language, dictionary definitions of 'child,' and an amendment to the Alabama Constitution, entitled the 'Sanctity of Unborn Life', to conclude that frozen embryos are persons under the WDMA. Although the majority failed to address concerns about the decision's impact on IVF – viewing it as an issue for the legislature to address – the decision threatens the future of IVF in Alabama and in other states that provide similar protections for 'unborn children'.
For the eight clinics listed by the CDC in Alabama that provide IVF services, the impact was immediate: several halted their delivery of care in light of the ruling. Even the individuals seeking treatment out of state have been thwarted by the liability fears of companies that would otherwise ship their embryos out of state. Although the State Attorney General has indicated his office will not use the decision to prosecute IVF patients or their clinics, that says nothing about the status of frozen embryos in Alabama. Members of the Alabama legislature have introduced legislation to protect fertility clinics (see BioNews 1229), but, again, that does not resolve the question of whether the Alabama Supreme Court would decide that the 'Sanctity of Unborn Life' constitutional amendment overrides legislation that does not treat embryos like persons. All of the uncertainty may make fertility providers close shop or leave the state, just as abortion providers have done in states with stringent abortion bans, as the New York Times reported last year. The decision has provided an impetus for pre-existing efforts at the federal level to protect access to IVF.
Alabama's ruling could also have wider implications. If Alabama and other states treat frozen embryos like children, that could lead to numerous restrictions on IVF. A state could limit the number of embryos created or prohibit cryogenic storage of embryos as a form of child abuse. It could also prevent the destruction of embryos, criminalising the behaviour of parents and doctors who dispose of the excess embryos or donate them for research. This would also impede preimplantation genetic testing, which is used in roughly 40 percent of IVF cycles in the US, and often results in decisions to destroy nonviable embryos.
Such regulations would impact the success, efficiency, and cost of IVF. The ability to create as many embryos as possible and sometimes to transfer more than a single embryo increases the chances of producing viable embryos and live births. But, if prospective parents may create only a few embryos at a time, they will have to pay for additional IVF cycles if they are not initially successful; IVF would thus be more expensive and less efficient for them than it is today. And even without restrictions on the number of embryos created, there would be no value in producing multiple embryos if cryogenic storage is not an option. The decision also carries risk for cancer patients seeking to preserve their fertility by freezing embryos before treatment.
As is the case with all matters related to reproduction, these negative impacts will be minimized for those who can pay the higher costs of IVF or who can travel if IVF is effectively or explicitly prohibited in Alabama or other states. Even without such limitations, access to infertility treatment is already unequal because the technology is so expensive. A cycle of IVF can cost $15,000 to $30,000. Few can pay for even one cycle. Relatively few states mandate insurance coverage for IVF, and there is no Medicaid coverage for IVF. In short, Alabama is on its way to further increasing the divide between those who have access to IVF and those who do not.
This ruling also has implications beyond IVF. While Alabama bans abortion throughout pregnancy, pregnant people seeking abortions in other states may now worry about returning to Alabama and facing wrongful death suits. Their providers may similarly be at risk.
Finally, other states may follow Alabama's personhood declaration, creating even more risks for anyone who wants to control their reproduction. Ultimately, abortion and reproductive technology can't be separated.
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