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Alabama Supreme Court Decision and IVF: The Debate Over Embryos as Children

For decades, women have steadfastly aimed to expand their control over reproductive rights. Their efforts span from advocating for contraception access and safe abortion practices to championing comprehensive sex education and affordable healthcare. Despite numerous legal or social obstacles, they have continued to speak out, demanding greater autonomy over their choices. The ongoing struggle for reproductive rights has played a crucial role in shaping the feminist movement, remaining a pivotal issue for women's health and overall well-being.

One of the main questions in debates surrounding reproductive rights is whether embryos are children. Even though they develop into children, the prevailing scientific consensus disputes this classification, arguing that embryos lack essential human properties until they undergo a six-month gestational period in the uterus, where neuronal formation and cellular duplication take place. Until then, they aren’t regarded as individuals, only as clusters of cells.

Towards the end of February, the Alabama Supreme Court confronted two wrongful death cases caused by a mishap at a fertility clinic where the frozen embryos of three couples were inadvertently destroyed when a staff member accidentally dropped them on the floor. Justices ruled that the law permitting parents to pursue legal action for the death of a minor child applies to all unborn children regardless of their developmental stage, physical location, or any other ancillary characteristics since “unborn children are ‘children’”, underscoring that individuals responsible for the destruction of embryos may be subject to legal consequences, including financial fines.

The ruling in late February has sparked concerns not only for procedures such as abortion but also for in vitro fertilization (IVF). In IVF, embryos with genetic abnormalities or those no longer needed by couples are commonly discarded. However, the recent legal precedent has prompted inquiries into whether couples undergoing IVF must maintain all their embryos frozen in fertility clinics, even if they do not intend to use them, which could incur significant annual costs from $350 to $1,000 per year.

Many couples opt for IVF as a solution when the mother faces several miscarriages, usually due to genetic problems, or struggles with infertility. Therefore, IVF procedures usually involve the selective elimination of embryos with genetic deficits to get the best results and minimize the financial burden on the couple. Nevertheless, since the court's decision, fertility clinics have found themselves in a precarious position resulting from potential repercussions such as regulatory constraints on discarding unwanted embryos, the necessity to raise fees to attract staff who might be wary of legal charges, and increased costs for medical malpractice insurance. Most fertility clinics fear litigation and penalties; consequently, they have suspended their procedures until further clarification from the government on the matter. Experts worry about the viability of Alabama fertility clinics and emphasize that everyone who respects reproductive autonomy should be afraid of this decision.

In response to controversies, a new bill was passed, and the Alabama governor remarked, "IVF is undoubtedly a complex issue, and I anticipate ongoing work in this area. However, at present, I am confident that this legislation will offer the necessary assurances to our IVF clinics, prompting them to promptly resume services." While the law presents a short-term solution enabling clinics to continue their work, it fails to address the fundamental question raised by the ruling: whether embryos conceived through IVF are recognized as children under Alabama law.

The response of clinics to the new law varied. Some immediately resumed their procedures, whereas others continued to be reluctant because of the law’s inability to fully handle the matter. The narrowly tailored bill seeks to shield healthcare providers offering IVF treatments and services by granting them civil and criminal "immunity." The legislation also aims to protect physicians, clinics, and other healthcare professionals by providing immunity for death or damage to embryos during IVF procedures. The new law will “provide civil and criminal immunity for death or damage to an embryo to any individual or entity when providing or receiving services related to in vitro fertilization.” It says that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” During the debate of the bill, the term “goods” was excluded from the phrase “goods or services”, meaning that even though companies that provide IVF-related items have criminal immunity, they can still face civil suits if their products are found to damage embryos. Moreover, the bill specifies that the penalty for such cases is limited to the price paid by patients for the affected IVF cycle.

Barbara Collura, president of RESOLVE: The National Infertility Association, said in a statement that while her organization was "relieved that Alabama clinics can reopen their IVF programs," the "legislation does not address the underlying issue of the status of embryos as part of the IVF process—threatening the long-term standard of care for IVF patients." Other professionals on the issue, like Karla Torres, senior counsel at the Center for Reproductive Rights, shared similar thoughts on the bill, asserting that it appears to confer personhood upon embryos, thereby aligning with the state Supreme Court's contentious ruling recognizing embryos as children. Torres criticized the legislation as a regressive measure in response to widespread public opposition, saying it serves primarily as a political maneuver.

Although the bill was intended to be a temporary fix, it has brought unforeseen consequences, such as the limitation it imposes on individuals seeking recourse for embryo loss resulting from clinic malpractice or device malfunction, suing for damages, or only being able to sue product manufacturers in civil court rather than criminal court.

Since IVF has gained popularity, its patients have encountered a spectrum of difficulties, from swapped embryos and flawed equipment to storage tank failures. Despite the absence of comprehensive databases tracking the occurrences contributing to embryo losses, a 2020 study revealed a significant number of lawsuits filed nationwide. Between 2009 and 2019, at least 133 lawsuits were recorded relating to impaired or destroyed embryos. Notably, 65% of these cases arose from high-profile breakdowns of embryo storage tanks in Ohio and California in 2018. These statistics prove the need for enhanced oversight within the IVF industry to mitigate risks and protect patient interests.

Hence, the Alabama government has yet to clarify whether an embryo is considered equivalent to a child under Alabama law. Their expedient but succinct resolution to the issue has resulted in the creation of more complications than it has resolved, thereby jeopardizing the future of fertility clinics in Alabama.

Works Cited

Abou-Sabe, Kenzi, et al. “Law Protecting Alabama IVF May Do More Harm than Good, Critics Say.” NBC News, 9 Mar. 2024.

Bendix, Aria. “Doctors and Patients Fearfully Proceed with IVF after Alabama Court Rules Embryos Are Children.” NBC News, 21 Feb. 2024.

Chandler, Kim. “Warnings of the Impact of Fertility Treatments in Alabama Rush in after Frozen Embryo Ruling.” AP News, 20 Feb. 2024.

Edelman, Adam. “Alabama Governor Signs Bill to Protect IVF Treatments into Law.” NBC News, 7 Mar. 2024.


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