Alabama hospital puts pause on IVF in wake of ruling saying frozen embryos are children

A large Alabama hospital has paused in vitro fertilization treatments as health care providers weigh the impact of a state court ruling that frozen embryos are the legal equivalent of children.

The University of Alabama at Birmingham said in a statement Wednesday that its UAB Division of Reproductive Endocrinology and Infertility has paused the treatments “as it evaluates the Alabama Supreme Court’s decision that a cryopreserved embryo is a human being.”

“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,” the statement emailed by spokeswoman Savannah Koplon read.

Other fertility treatment providers in the state were continuing to provide IVF as lawyers explored the impact of the ruling.

The ruling by the all-Republican Alabama Supreme Court prompted a wave of concern about the future of IVF treatments in the state and the potential unintended consequences of extreme anti-abortion laws in Republican-controlled states. Patients called clinics to see if scheduled IVF treatments would continue. And providers consulted with attorneys.

Justices — citing language in the Alabama Constitution that the state recognizes the “rights of the unborn child” — said three couples could sue for wrongful death when their frozen embryos were destroyed in a accident at a storage facility.

“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in Friday’s majority ruling by the all-Republican court.

Mitchell said the court had previously ruled that a fetus killed when a woman is pregnant is covered under Alabama’s Wrongful Death of a Minor Act and nothing excludes “extrauterine children from the Act’s coverage.”

The ruling brought a rush of warnings about the potential impact on fertility treatments and the freezing of embryos, which had previously been considered property by the courts. Groups representing both IVF treatment providers and patients seeking fertility treatments raised alarm about the decision.

And patients were left wondering where it would leave them.

Gabby Goidel, 26, who is pursuing IVF treatment in Alabama after three miscarriages, told The Associated Press that the court ruling came down on the same day she began daily injections ahead of egg retrieval.

“It just kind of took me by by storm. It was like all I could think about, and it was just a very stressful thing to hear. I immediately messaged my clinic and asked if this could potentially halt us. They said we have to take it one day at a time,” Goidel said.

Barbara Collura, the CEO of RESOLVE: The National Infertility Association, told the AP Tuesday that the ruling raises questions for providers and patients, including if they can freeze future embryos created during fertility treatment or if patients could ever donate or destroy unused embryos.

The Alabama Supreme Court decision partly hinged on anti-abortion language added to the Alabama Constitution in 2018, stating it is the “policy of this state to ensure the protection of the rights of the unborn child.”

Eric Johnston, an anti-abortion activist and lawyer who helped draft the constitutional language, said the “purpose of that was more related to abortion.” He said it was intended to clarify that the Alabama Constitution does not protect the right to abortion and eventually laid the groundwork for Alabama to ban abortions when states regained control of abortion access.

“Modern science has raised up this question about well is a fertilized egg that is frozen — is that a person? And that’s the ethical, medical, legal dilemma that we’ve got right now. … It’s a very complicated issue,” Johnston said.

However, opponents of the constitutional amendment warned in 2018 that it was essentially a personhood measure that could give rights to fertilized eggs.