IVF Clinic in Alabama Becomes 1st to Halt Services After State Rules Embryos Are ‘Children’

On Wednesday, an IVF clinic in Alabama became the first fertility clinic to halt services after the state’s Supreme Court ruled on Friday that frozen embryos are “extrauterine children.” A spokesperson for the University of Alabama at Birmingham’s Division of Reproductive Endocrinology and Infertility told AL.com that UAB is “saddened” for their patients who struggle with infertility and can no longer look to their IVF services at this time.

“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,” Hannah Echols told AL.com. In a statement e-mailed to Jezebel, Echols wrote: “We want to reiterate that it is IVF treatment that is paused. Everything through egg retrieval remains in place. Egg fertilization and embryo development is paused.” UAB did not comment on the process of making this determination or whether they may try to challenge the state Supreme Court’s ruling.

On Friday, the Alabama Supreme Court ruled that three couples who, in 2021, accused a fertility clinic and hospital in Mobile, Alabama of accidentally destroying their embryos have grounds to sue for “wrongful death.” According to the lawsuit, a patient at Mobile’s Center for Reproductive Medicine removed embryos from the cryogenic freezer but “the subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.” The case was initially dismissed by a circuit court judge before being taken up by the state’s Supreme Court.

Friday’s ruling says the state’s Wrongful Death of a Minor Act “applies to all unborn children, regardless of their location,” and cited Section 36.06 in the Alabama Constitution, which says that “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.” It also references Alabama Supreme Court rulings from 2012 and 2013, which determined that child endangerment laws can be applied to unborn fetuses. The couples’ lawsuit against the fertility clinic claims the clinic left “the cryopreserved embryonic human beings on the floor, where they began to slowly die.”

Legal experts have since warned that if the destruction of embryos—which is standard practice for IVF—is “wrongful death,” then IVF itself is jeopardized. In September, the Medical Association of the State of Alabama filed a brief in this case warning that “the potential detrimental impact on IVF treatment in Alabama cannot be overstated.” The effects of the ruling will also extend beyond IVF: If a fetus or embryo is considered a person, the government legally holds control over reproduction; pregnancy outcomes like miscarriage or self-managed abortion become subject to even greater state scrutiny (or criminalization).

“The increased exposure to wrongful death liability as advocated by the Appellants would—at best—substantially increase the costs associated with IVF,” the brief said. “More ominously, the increased risk of legal exposure might result in Alabama’s fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine.” Pregnancy Justice Deputy Director Dana Sussman told Jezebel on Monday that this ruling is about pushing a legal “agenda to control and criminalize pregnant people” by establishing legal rights for their embryos, and marks “an expansion of what it means for life to begin at conception that will be weaponized against providers [and] ex-partners.” Treating embryos as “children” will render health care providers, pregnant people, and women involved in abusive situations “more vulnerable to legal trouble,” Sussman said. As Jezebel has previously explored, there have been custody battles and legal conflicts over frozen embryos since at least 2000.

UAB’s decision to suspend IVF services offers an ominous glimpse at the impacts that legal recognition of fetal and embryonic personhood will have on health care.