Alabama Says Embryos in a Lab Are Children. What Are the Implications?

Scroll down for response from NCMS Member Dr. Amy Bryant

(NYT, Jan Hoffman) —  The Alabama Supreme Court has opened a new front in the legal debate over when human life begins. Embryos created and stored in a medical facility must be considered children under the state’s law governing harmful death, the court ruled.

Friday’s ruling was cheered by anti-abortion activists nationwide, who have long argued that life begins at conception. They were thrilled that, for the first time, a court included conception outside the uterus in that definition. But the strongest and most immediate effect of the decision will be on fertility patients trying to get pregnant, not women seeking to end their pregnancies.

The Alabama ruling invites states to enact strict new regulations over the fertility industry that could sharply limit the number of embryos created during a cycle of medical treatment and affect the future of millions of stored frozen embryos. A concurring opinion even offered road maps for such statutes. That could have a chilling effect on a person seeking to have children through in vitro fertilization, whether single or part of a same-sex or heterosexual couple.

What did the ruling say?

The ruling is actually somewhat narrow. It applies to three couples who had sued the Center for Reproductive Medicine, a fertility clinic in Mobile, for inadvertently destroying their embryos. The plaintiffs argued that they were entitled to punitive damages under Alabama’s 1872 Wrongful Death of a Minor Act. Two lower state courts disagreed, saying the embryos were neither people nor children. The State Supreme Court reversed those rulings, saying that the embryos fell squarely under Alabama’s definition of minors and that the negligence lawsuits could proceed. The case will now go back to the State District Court for further litigation.

What did the ruling not say?

The decision is silent on the fate of other frozen embryos in Alabama because that issue was not before the court. The ruling is only about the terms under which plaintiffs may bring a negligence case against a fertility clinic for embryo destruction. However, it could eventually have major consequences for Alabama patients and providers.

On Wednesday, the I.V.F. clinic at the University of Alabama at Birmingham announced it was pausing fertility treatments to explore the implications of the court’s ruling on its patients and providers. One fear is that the clinic, doctors and even patients may face daunting new liability issues surrounding the handling of embryos.

What will it mean for fertility patients and clinics?

“The honest answer is that we don’t know for sure,” said Dr. Paula Amato, president of the American Society for Reproductive Medicine, an organization that lobbies on behalf of fertility experts and patients. “But the ruling is very concerning.”

Freezing embryos is a widespread practice. During a standard cycle of in vitro fertilization, a woman takes hormones to maximize her production of eggs. A doctor then retrieves as many eggs as possible and injects them with sperm in the clinic’s lab, with the goal of creating viable embryos for implantation.

That process will often result in numerous embryos. Because of dangers associated with multiple births from I.V.F., protocols now urge doctors to implant only one embryo at a time. But success with implantation is hardly guaranteed, and so typically doctors freeze remaining embryos for subsequent attempts.

But if laws prevent providers in Alabama from freezing embryos, patients may face the medically challenging and financially draining prospect of many more cycles, Dr. Amato said. Success rates would most likely plummet. “It will disproportionately affect lower income people, people of color and people in L.G.B.T. communities,” she said.

Overall, according to federal data, infertility affects 9 percent of men and 11 percent of women of reproductive age in the United States.

The ruling may therefore restrict the ways that reproductive medicine is practiced in Alabama. “The ruling potentially criminalizes or sets a high civil penalty for standard procedures that we do every day,” Dr. Amato said.

Did the Alabama court suggest protocols for frozen embryos?

No. The court was clear that it could not regulate fertility clinics and the practice of reproductive medicine. But in a concurring opinion, Chief Justice Tom Parker strongly urged the Alabama legislature to examine the matter. He said that other countries, including Italy, New Zealand and Australia, limited the number of embryos that could be created as well as implanted, and suggested that states look to them for regulatory templates.

Is this case headed to the U.S. Supreme Court?

Not imminently, legal experts predicted. The clinic would have to appeal the decision, a move that could be risky, said Katherine L. Kraschel, an expert on reproductive law at Northeastern University School of Law. In light of the United States Supreme Court’s 2022 Dobbs ruling that overturned the national right to abortion, she said, the clinic’s chances at even getting to the door of the Supreme Court would be slender, “because the case hinges on a State Supreme Court’s interpretation of its own state statute.”

Lawyers for the clinic did not return requests for comment.

Also, the case is far from finished in Alabama. The State Supreme Court directed the parties to return to the district court to litigate the case in light of the new ruling, including the suggestion that other legal avenues be explored. One issue it identified was whether a clinic’s standard contract with fertility patients, which typically allows providers to donate or destroy embryos at some future point, could limit the clinic’s liability in this case.

Does all this have any effect on abortion?

In recent years, anti-abortion groups have been pressing for fetuses to be granted “personhood” status, which would entitle them to legal protections. In extending that umbrella to cover embryos in a lab, the Alabama Supreme Court employed reasoning that runs through the U.S. Supreme Court’s 2022 abortion ruling: that fetuses deserve a court’s shield under the 14th Amendment’s equal protection clause.

“The Supreme Court is making this bid to think about the fetus as a vulnerable, unprotected minority that courts are obliged to step in and protect, whether that is through upholding anti-abortion restrictions or moving forward toward accepting and recognizing the fetus as a person,” said Melissa Murray, an expert on reproductive law at the New York University School of Law.

Americans United for Life, the country’s oldest anti-abortion organization, was particularly encouraged by Alabama’s embrace of that theme.

“The Alabama Supreme Court held that the text of the Wrongful Death of a Minor Act is clear and applies to all pre-born children, including the plaintiffs’ embryonic pre-born children. In doing so, the Court correctly acknowledged the legal status of embryos as human persons,” Danielle Pimentel, the policy counsel for the organization, said in a statement. “This decision is a step in the right direction toward ensuring that all pre-born children are equally protected under the law.”

Dr. Amato said she found it ironic that anti-abortion groups were supporting rulings that could severely limit I.V.F.

“I.V.F. is about family building,” she said. “It should be viewed by red states as a pro-life activity.”

Response to the ruling by NCMS member Dr. Amy G. Bryant, MD:

The Alabama Supreme Court’s ruling will fortunately not affect North Carolina. But this ruling is deeply troubling because it gives medically unnecessary legal protections to frozen embryos. This will have a devastating impact on people seeking to grow their families using assisted reproductive technology, and could embolden other states to pass similar legislation.  The tactics at play in this ruling are an overt attempt to control people who need this assistance to build their families, and are an extension of the tactics that place medically unnecessary restrictions on abortion. This ruling shows that anti-science politicians never intended on stopping at abortion. This new type of interference in reproductive healthcare exposes anti-abortion intentions to continue to restrict bodily autonomy, no matter the circumstances.  Patients and physicians should be allowed to make decisions regarding their fertility based on their personal values and beliefs, not those imposed by the state.

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