MONTGOMERY, Ala. – Additional in vitro fertilization providers in Alabama paused services Thursday, sending patients scrambling to make other plans in the wake of a state Supreme Court ruling that said frozen embryos could be considered children under state law.
Doctors and patients have been grappling with shock and fear this week as they try to determine what they can and can’t do after the ruling by the all-Republican Alabama Supreme Court. Three clinics have announced pauses on services while another facility assured patients that IVF treatment could continue. State legislators also began looking for a way to protect IVF services in the state.
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The University of Alabama at Birmingham system, Alabama Fertility Services and The Center for Reproductive Medicine, in conjunction with a related hospital system Infirmary Health, announced a pause on IVF treatments.
“We understand the burden this places on deserving families who want to bring babies into this world and who have no alternative options for conceiving,” Infirmary Health CEO Mark Nix said.
Gabby Goidel, who was days from an expected egg retrieval appointment, got a call Thursday morning from her provider telling her that they would not be able to do an embryo transfer if they sucessfully retrieved eggs.
“I freaked out. I started crying. I felt in an extreme limbo state. They did not have all the answers. I did not obviously have any answers,” Goidel said.
Goidel, who experienced three miscarriages and turned to IVF as a way she and her husband could fulfill their dream of becoming parents, found a place in Texas that will continue her care and plans to travel there Thursday night.
“It’s not pro-family in any way,” Goidel said of the Alabama ruling.
At the Fertility Institute of North Alabama, Dr. Brett Davenport urged patients not to panic and said his clinic will continue providing IVF. But he also urged state policymakers to act and remove the uncertainty for providers.
“What we do could not be any more pro-life. We’re trying to help couples who can’t otherwise conceive a child,” Davenport said.
Davenport said he believes they are on safe legal ground to continuing transferring embryos to a woman. The uncertainties, in his view, surround what clinics can do with frozen embryos that aren't immediately used.
Patients might decide to create fewer embryos or skip genetic testing if they are uncomfortable having embryos deemed genetically abnormal “being in a holding state, not knowing when we can thaw them or what we can do with them,” Davenport said.
Justices last week said three couples, who had frozen embryos destroyed in a mishap at a storage facility, could pursue wrongful death claims for their “extrauterine children.” The finding, treating the embryos similar to a child or gestating fetus under the wrongful death statute, raised questions about what legal liabilities clinics could face during IVF processes, including the freezing, testing and disposal of embryos.
Justices cited the wording of the wrongful death statute along with language added to the Alabama Constitution in 2018 saying that the state recognizes the “rights of the unborn child.”
“Unborn children are ‘children’ ... without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in an opinion.
Alabama lawmakers began scrambling for a potential solution, proposing multiple pieces of legislation.
Republican state Sen. Tim Melson, who is a doctor, said he is not surprised by the unintended consequences of the 2018 constitutional language and intends to file legislation to protect IVF services in the state. Melson said his proposal seeks to clarify that a fertilized egg has legal protections under the statutes once it is implanted in the uterus but until then is a “potential life.”
“I’m just trying to come up with a solution for the IVF industry and protect the doctors and still make it available for people who have fertility issues that need to be addressed because they want to have a family,” Melson said.
Senate Minority Leader Bobby Singleton, a Democrat, said Republicans' quest to make stringent anti-abortion laws and policies may have eliminated a path for people to become parents.
“At the end of the day, the Republican Party has to be responsible for what they have done,” Singleton said.
The court decision decided only if embryos are covered under Alabama's wrongful death statute, said Mary Ziegler, a legal historian at the University of California, Davis School of Law. The court did not say embryos had full constitutional rights, she said, or at least not yet.
“I think people in Alabama are rightly expecting that this is the tip of the iceberg though, and this ruling will lead to more down the road,” Ziegler said. She also said anti-abortion groups and politicians have been pushing to get some sort of ruling through the federal courts “that a fetus is a constitutional rights holder.”
“It's not just about in-vitro and it's not just about Alabama. It's part of this nationwide movement too,” she said.
Rachel Rebouche, dean of Temple University Beasley School of Law in Philadelphia, sees the ruling as “emblematic of the long march toward fetal personhood.”
"This may not be the case that launches it, but this is a very strategic decision on the part of anti-abortion forces because they know that personhood bills have failed,” Rebouche said.
Dr. John Storment, a reproductive endocrinologist in Lafayette, Louisiana, said the Alabama decision could affect whether fertility doctors want to move to or stay in that state.
“I don’t think that any doctor knowing that there’s a potential for criminal prosecution would even want to be in that position,” he said. “There’s 49 other states and many other countries they could practice in without the same threat.”
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Associated Press writers Geoff Mulvihill in Philadelphia and Laura Ungar in Louisville, Kentucky, contributed.