Doctors are reacting with shock and fury to an Alabama supreme court decision that has shut down in vitro fertilization at the state’s largest infertility clinics.
Physicians said the decision, which ruled embryos are “extrauterine children”, grossly misunderstood reproductive medicine and was “devastating” for infertile patients.
“We made the impossible decision to pause new IVF treatments at our center, which is devastating for our patients and the state,” said Dr Mamie McLean, a fertility specialist at Alabama Fertility, which performed about 700 rounds of IVF in 2023.
“Our legal team is telling us that, as the ruling is written, that modern fertility treatments cannot continue in the state of Alabama because of the risk to physicians and embryologists, given that embryos are now considered children,” said McLean.
The chief legal officer and general counsel for the American College of Obstetricians and Gynecologists (ACOG), Molly Meegan, said she expected confusion about how to implement the decision to make IVF “either completely unavailable or too expensive for most patients” in Alabama.
The Alabama supreme court’s decision ruled embryos are “extrauterine children” in a case that arose out of an incident at a Mobile fertility clinic. In December 2020, a patient at the clinic wandered into cryogenic embryo storage, lifted an ultra-cold vessel out of storage, and immediately dropped it when it burned her hand – destroying the embryos inside.
Three couples sued under the state’s wrongful death of a minor statute. A lower court threw out the case, because courts have repeatedly held that embryos are considered property, not people, thus “wrongful death” would not apply. The couples appealed to the state’s highest court, where a majority of justices ruled in their favor, deciding that the wrongful death statute applies to “all unborn children, regardless of their location”.
“We’re literally criminalizing standard medical care,” said Dr Serena Chen, vice-president of the grassroots group Doctors for Fertility and a reproductive endocrinologist in New Jersey, where she is director of advocacy at CCRM Fertility and a founder of the Institute for Reproductive Medicine and Science.
“We’re legislating malpractice – we’re saying, ‘You don’t use your normal medical principles, all the training you went through, all your experience’ – we’re just tossing it out to this arbitrary idea that doesn’t have a biological basis,” said Chen.
Already, the decision has forced Fertility Alabama and the University of Alabama at Birmingham to stop administering most stages of IVF. While other infertility treatments may continue, such as intrauterine insemination, none are as effective as IVF.
Doctors said the decision shows a fundamental misunderstanding of reproductive medicine – with several portions wholly ungrounded in reality. For instance, justices introduced the idea that a “full-term infant or toddler” could be “gestated to term in an in vitro environment”, when there is no way to gestate an embryo outside a human uterus for longer than roughly seven days.
The justices “clearly don’t understand IVF at all and clearly don’t understand what these couples are suffering from”, Chen said. “Aren’t they supposed to learn about the topic before they make these decisions?”
Today, about 2% of all babies born in the US are conceived through in vitro fertilization. To perform a round of IVF, doctors stimulate a patient’s ovaries to produce several eggs. Those eggs are retrieved and fertilized with sperm in vitro, Latin for “in glass” (hence the expression “test tube baby”), creating embryos that consist of a group of a few hundred cells and are called blastocysts. Doctors typically implant one or two of the embryos in a patient’s womb around the sixth day of the embryo’s development.
At each of these stages, it is expected that some number of embryos will fail to develop. There are eggs that may not fertilize, fertilized eggs that may not become embryos and embryos that will never produce a healthy baby. Doctors often refer to this as the “inefficiency of reproduction”, and it is why IVF typically relies on the creation of multiple embryos to succeed.
There are other points of failure in the process as well: embryos may be discarded because of irregular genetic test results; others may not survive the freeze-thaw process of cryogenic storage, which allows couples to save embryos for potential future rounds of IVF.
Meegan said calling an embryo – any embryo – a “child” calls multiple stages of the IVF process into question. “Can you freeze an embryo at all? Do you need to implant every embryo that exists in Alabama?” she asked.
There are more questions. Must frozen embryos be maintained in perpetuity? That’s an expensive proposition given the cost of storage. Must all embryos be implanted into a patient’s womb at once? That increases the odds of multiples, which are risky for both mother and child. And, if every embryo’s failure could lead to a wrongful death suit, how can doctors possibly carry enough liability insurance to practice?
“This is what you get when you have non-medical individuals, who don’t really understand what they’re talking about, making decisions like this,” said Dr Jennifer Bakkensen, an endocrinologist and assistant professor of obstetrics and gynecology at the Warren Alpert Medical School of Brown University in Rhode Island.
Fertility is of special concern to female physicians. Residents typically finish training at 31.6 years of age, which are prime reproductive years. Female physicians suffer infertility at twice the rate of the general population, because demanding careers push many to delay starting a family.
“This not only affects patients but also colleagues who rely on these kinds of technologies to build their families,” said Bakkensen. “When you have legislation or decisions like this, basically if this decision holds, [it] would prohibit the practice of modern fertility care as we know it.”
The Alabama supreme court’s decision to grant embryos the rights of “extrauterine children” stems directly from anti-abortion activism, and is part of a nationwide push to establish fetal personhood. Doctors in Oklahoma are actively fighting a proposed ballot measure that, if passed, would enshrine the idea that life begins at conception in the state constitution. Eleven states, including Alabama, have personhood language in their laws, according to Pregnancy Justice.
“This decision is one in a series of decisions that have been attempting to create this concept of personhood around an embryo that is likely to have additional downstream ramifications over months and years to come,” said Meegan. The concept could have far-reaching implications on everything from criminal and family law to tax and traffic violations.
Personhood has been a goal of the anti-abortion movement since nearly the moment abortion was legalized nationally in 1973 in the Roe v Wade case. For nearly 50 years, the rights granted in that decision protected against “personhood” statutes and decisions.
But Roe’s demise in June 2022 cleared the way for abortion bans in 14 states and pushed fetal personhood to the forefront, paving the way for the Alabama decision.
Meegan said the ACOG, the American Medical Association (AMA) and the Society for Maternal-Fetal Medicine (SMFM) have all been in “rapid response” mode since the Dobbs decision, writing briefs to state courts to fight abortion bans.
The Alabama Medical Association argued forcefully against such an outcome in an amicus, or “friend of the court”, brief in the Alabama case. In an email to the Guardian, a spokesperson for the association said the group had “grave concerns” about how the decision will affect reproductive medicine in the state. Similarly, the American Society for Reproductive Medicine (ASRM) called the decision “profoundly misguided and dangerous”, a statement the SMFM supported, saying it stood in “strong opposition” to the court’s ruling.
“There’s been a real drawing together of the house of medicine, and an understanding that the ramifications here are severe” and “dangerous”, said Meegan. For McLean, the only “silver lining” is the support she has received from other doctors within and outside the state.
Nevertheless, not all doctors feel the medical community has been aggressive enough. Chen said there was “absolutely not enough” action from the medical community to meet the moment.
“As doctors, we’re trained to try to be apolitical, and abortion has such violent connotations – literally physicians have been killed over this issue,” Chen said. However, “If we as doctors and healthcare providers don’t do something, say something, we are not serving our patients.”
