Lead Plaintiff in Texas Abortion Lawsuit Is Moving Her Embryos Following Alabama Ruling

Last week, an Alabama Supreme Court ruling that deemed frozen embryos to be “extrauterine children” prompted several fertility clinics in the state to pause their IVF services. By Friday, as some IVF patients scrambled to try and move their embryos out-of-state, RESOLVE: The National Infertility Association announced that nationwide embryo shipping services had also stopped shipping embryos to and from Alabama due to legal concerns.

Watching this unfold, Amanda Zurawski, the lead plaintiff in an ongoing lawsuit challenging Texas’ abortion ban, revealed that she’s decided to move her embryos out of Texas. “I don’t want them in a state where a similar ruling could very likely take place,” Zurawski told NBC on Thursday. “Everything about IVF is very anxiety-inducing. It’s very scary. It’s very difficult and rulings like this one in Alabama are just adding another layer of fear and anxiety.”

Zurawski is one of two dozen women suing Texas to clarify the medical emergency exception in its abortion ban. She and her fellow plaintiffs accuse the state of almost killing them or severely endangering their health and future fertility by denying or delaying their access to emergency abortion care for their dangerous, nonviable pregnancies. “My heart is broken for every hopeful parent in the state of Alabama and beyond because this isn’t going to stop in Alabama,” Zurawski said. “This is going to have a snowball effect.” 

To Zurawski’s point, since the Alabama Supreme Court’s ruling, experts have warned that the decision could have implications for IVF and for pregnant people’s rights in Alabama and beyond. The ruling came after three couples in 2021 sued Alabama’s Center for Reproductive Medicine and Mobile Infirmary Medical Center for wrongful death after another patient accidentally dropped and destroyed their embryos. The state Supreme Court determined that the couples’ wrongful death suit could move forward because the state’s Wrongful Death of a Minor Act “applies to all unborn children, regardless of their location.” IVF requires the routine destruction of unused embryos, rendering fertility clinics vulnerable to costly wrongful death suits that could bankrupt them if they continue IVF services.

Mobile Infirmary Medical Center is one of several fertility clinics that have since paused their IVF services; some clinics, like the University of Alabama at Birmingham, have also paused their embryo transportation services. IVF patients in Alabama—some of whom were imminently set to have their embryos implanted—are left in an agonizing limbo. One IVF patient, Meghan Cole, told NBC her embryo was set to be implanted in a surrogate on Friday when she received news on Wednesday evening that her clinic, Alabama Fertility in Birmingham, was pausing its services. Cole suffers from a blood disorder that prevents her from safely carrying a pregnancy. “I’m just kind of stuck until something changes down here, which, who knows how long that’s going to take?” Cole said.

Cole said she empathized with the position her clinic is in but also expressed frustration with what she’s now facing, and the legal contradictions stemming from the court ruling. “The clinic is afraid to even release the embryos to us for transfer to another state. I’m like, ‘Well, theoretically, aren’t you kidnapping my children?’” Cole said. “How far are we taking this? Can I claim them as dependents on my tax return?”

Elisabeth Smith, director of state policy at the Center for Reproductive Rights, which is representing Zurawski in her lawsuit, told Jezebel that Alabama’s ruling is “extremely alarming,” and “part of the chaos we knew would ensue if Roe v. Wade was overturned.”

On Friday, Alabama Attorney General Steven Marshall’s office stated that it “has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers.” But the issue at hand isn’t necessarily one of criminalization, but civil liability: In September, the Medical Association of the State of Alabama warned in a brief filed to the state Supreme Court that deeming embryos “children” could “substantially increase the costs associated with IVF” due to the increased risk of lawsuits. The group further cautioned that such a ruling could result in widespread closure of IVF clinics in the state—which we already seem to be seeing. 

And, on top of that, a state attorney general generously offering to not criminalize people for using IVF isn’t particularly reassuring. It’s often local police departments and local law enforcement who dole out pregnancy-related criminal charges—which become more likely when embryos are “children” and pregnant people are more vulnerable to charges for “child endangerment” or miscarriage.

After all, anti-abortion politicians’ words and statements in support of IVF over the last week are all but meaningless when we look at their records; nearly every anti-abortion Congress member who said they support IVF voted for a bill that would legally recognize that life begins at conception. And we can also look at the impact that their “pro-life” positions are having on real women, like Meghan Cole in Alabama or Amanda Zurawski in Texas, left scrambling in a world where embryos are children.