What the Recent Supreme Court Ruling in Alabama Means For Donor Egg IVF

This article was last updated on March 1, 2024. The Alabama Supreme Court ruling is a quickly unfolding situation. Be sure to consult official news sources or legal experts for the most up-to-date information and guidance. 

On February 16th, 2024, the Alabama Supreme Court ruled that frozen embryos can be considered children under state law, a ruling that sent shockwaves through the reproductive health community and raised widespread concerns regarding its potential impact on fertility care. Several of the state’s in vitro fertilization (IVF) clinics have since paused services, and lawmakers, doctors, and patients are raising concerns about the far-ranging impacts of the ruling on healthcare and reproductive technology.

While there’s still a great degree of uncertainty, in this article, we'll delve deeper into the implications of this significant legal shift, exploring how it specifically impacts donor egg IVF procedures. Additionally, we'll explore what resources may be available to those affected by this ruling and provide insights on how you can engage in advocacy efforts to address these challenges.

What is the Alabama court case about?

The recent ruling by the Alabama Supreme Court was the result of a lawsuit filed by three couples who underwent IVF treatment at a fertility clinic in Alabama. Following successful IVF procedures that resulted in the birth of healthy babies, the couples, like many undergoing such treatments, had additional embryos preserved by the clinic which was located inside of a hospital.

However, in December 2020, a patient at the hospital gained unauthorized access to the fertility clinic's cryo-preservation unit and mishandled the frozen embryos, resulting in their destruction. This tragic incident led the plaintiffs to file lawsuits against both the fertility clinic and the hospital where it was located.

One of the lawsuits centered around the application of Alabama's Wrongful Death of a Minor Act. Initially dismissed by the trial court, which ruled that embryos in vitro did not qualify as minors under the act, the case was escalated to the Supreme Court of Alabama. The Alabama Supreme Court diverged from the trial court's stance. They asserted that the Wrongful Death of a Minor Act applied to all unborn children, regardless of their location—in utero or in vitro—at the time of the incident. By deeming the in vitro embryos as persons under the law, the court allowed the couples to proceed with their lawsuit, seeking punitive damages for what they perceived as the wrongful death of their children.

What are the implications for Alabama fertility patients?

The recent ruling by the Alabama Supreme Court does not explicitly impose any bans or restrictions on IVF procedures. However, legal experts suggest – and we’re already seeing in practice – that the decision may create confusion regarding the legality of certain aspects of IVF within Alabama.

For context, data from the Centers for Disease Control and Prevention indicates that approximately 2% of babies in the United States are conceived using assisted reproductive technology. Among the various treatments available, IVF stands out as the most commonly utilized method. IVF is a complex procedure that begins with a stimulated cycle wherein a woman undergoes hormone injections to prompt her ovaries to produce numerous eggs. These eggs are then harvested and united with sperm, giving rise to embryos that undergo incubation for development.

After a few days, the embryos undergo assessment, with only the most viable ones selected for transfer into the woman's uterus. The goal is for the transferred embryo to implant successfully, leading to a healthy pregnancy and ultimately the birth of a child. Any surplus high-quality embryos from the stimulated cycle are typically cryopreserved for potential future use. Not all harvested eggs are suitable for fertilization and not all embryos may be deemed suitable for transfer. Subpar-quality eggs, abnormally fertilized embryos, and embryos displaying poor quality are routinely discarded as part of the process.

The crux of the matter in the recent ruling lies in the classification of embryos as persons under Alabama law. This designation has already raised significant questions regarding the permissible usage and storage of embryos by fertility clinics. In essence, the interpretation of Alabama law equates the legal protection of frozen embryos to that of living children. Under this interpretation, individuals who inadvertently or intentionally destroy a frozen embryo in Alabama could potentially face severe penalties, including manslaughter or murder charges.

This ruling has the potential to significantly disrupt access to fertility care as it may introduce additional regulatory burdens in an already complex medical landscape and could potentially drive up procedural costs. Although the extreme of the financial implications remains unclear, factors such as additional storage fees and liability expenses may further contribute to the rise in expenses.

On top of existing clinics closing, the ruling might lead to a reduction in IVF providers in the state. Even if clinics reopen, fertility doctors may be hesitant to practice in or relocate to Alabama. In light of the perceived risks tied to freezing or destroying embryos within this legal framework, fertility clinics across the state are already proceeding with caution, opting to restrict their IVF services, including retrievals and cryopreservation. Consequently, patients are already finding themselves compelled to seek treatment outside of Alabama, a situation that might intensify if clinics can’t get back to operating at full capacity.

How does this affect donor egg IVF?

Egg donation itself is not in as much legal limbo as eggs are not considered fetuses under current law. However, given the end goal of fertilizing and transferring the donor eggs, the ruling of course affects the donor egg IVF process.

Donor egg IVF encompasses several stages, including egg retrieval, fertilization, and subsequent embryo transfer to the intended parent's or surrogate's uterus. This ruling may necessitate procedural changes in IVF, potentially influencing the number of embryos created and transferred per cycle. Moreover, frozen embryo transfers are commonly utilized in donor egg IVF for preimplantation genetic screening. The ruling could introduce additional regulations or restrictions on the use of frozen embryos.

Many individuals and couples pursuing donor egg IVF have already been through lengthy, challenging, and expensive fertility journeys. This is particularly true for LGBTQIA+ individuals and couples who often depend on donor egg IVF to grow their families. In short, the Alabama Supreme Court only introduces more complexity and potential hardship to a landscape that’s already fraught with challenges. Regardless of where someone is in this family-building journey, this ruling has the potential to alter their trajectory.

What resources are available to those impacted and how can I get involved?

In response to these challenges, several organizations have stepped up to support individuals and families in Alabama. 

Cofertility's storage partner, TMRW Life Sciences, is offering one year of free cryostorage for frozen eggs and embryos to patients who live in Alabama and who wish to move their embryos to TMRW’s biorepository in NYC. 

Conceive is offering a free one-month membership to Conceive Premium for anyone in Alabama. Conceive Premium provides invaluable assistance and guidance throughout your fertility journey by offering 24/7 support from fertility nurses, peer coaching, community forums, and more.

Furthermore, there are various ways individuals can get involved with advocacy efforts aimed at supporting  Alabama families and protecting IVF access across the country. You can show your support for organizations that fight to uphold reproductive rights and ensure equitable access to fertility treatments like the American Society for Reproductive Medicine (ASRM) and RESOLVE, the National Infertility Association. To stay in the loop, sign up for alerts from RESOLVE’s Advocacy Network and follow @resolveorg on Instagram.

Sharing personal stories through public channels like social media can help raise awareness and amplify the voices of those affected. You can also use easily-accessible, online forms to send a letter to Congress and encourage them to address the issue. Lastly, local support groups, such as RESOLVE peer-led support groups in Alabama, provide a supportive environment for individuals to connect with others facing similar challenges.

Cofertility’s position

We at Cofertility are deeply concerned about the recent verdict and have been monitoring the situation closely. Our team is diligently tracking developments and working with our legal and professional advisors in order to navigate any potential implications side by side with our members. We understand the importance of safeguarding the rights and interests of donors and intended parents alike.

We believe the decision to seek medical support in family planning is profoundly personal and should be guided solely by patients and their healthcare providers. We believe that access to safe and effective medical care should be available to all individuals on their journey to parenthood, regardless of their location.

As a proactive measure until the law becomes clearer, we are temporarily suspending the facilitation of retrievals in Alabama where legislative uncertainty or restrictions pose potential risks to our members. We are also actively engaging with any intended parents in Alabama to assess their specific situations and explore potential paths forward. We’re focused on providing these members of our community with comprehensive support and guidance as they navigate these challenging times. If you are a Cofertility member and have any questions, concerns, or would like to get in contact with our team to talk through the specifics of your situation and how we may be able to help, please don’t hesitate to reach out.