In Vitro Fertilization in Danger

Alabama’s Controversial Ruling & Next Steps

Eva Koczur

Abstract

A recent ruling in Alabama has granted lab-grown unimplanted embryos created through
IVF the rights of an “unborn child” under state law. This decision has halted a majority of IVF
services in the state - doctors and clinics fearing for the new legal implications of the
traditional practice of discarding embryos. The ruling has additionally gone on to endanger
the accessibility of in-vitro fertilization, the safety of its patients, and potentially the
continuation of the process as a whole. For these reasons, outdated Alabama state
legislation requires revision taking IVF into account, and protections need to be extended
on the federal level.

Introduction to IVF

In vitro fertilization - often referred to as IVF - is a fertility procedure for individuals facing
obstacles with natural conception. At a base level, the procedure is as follows: egg retrieval
with a suction device, fertilization with sperm in a laboratory disk, allowance of the
embryo(s) to further develop in a monitored lab setting, and ultimate implantation of the
embryo(s) into the uterus. During this process, frequent injectable hormones are necessary
for ovarian stimulation and producing a surplus of eggs. This means that multiple eggs are
harvested, fertilized, and often implanted together - followed by the common practice of
indefinitely freezing excess embryos. Before implantation, the embryos are evaluated to
maximize quality and oftentimes genetically tested (PGT) for abnormalities or high-risk
conditions.1

1
“IVF (in Vitro Fertilization): Procedure & How It Works,” Cleveland Clinic, accessed April 10, 2024,
https://my.clevelandclinic.org/health/treatments/22457-ivf.

1
IVF Prevalence and Demographics

Infertility is considered common in the US, as “[a]bout 9% of men and about 11% of women
of reproductive age in the United States have experienced fertility problems.”2 There are a
plethora of reasons individuals facing fertility struggles may seek out IVF, with many
candidates being same-sex couples, those with high-risk genetics, older individuals, women
with endometriosis, people struggling with ovarian conditions or low sperm counts, and
those recently receiving a cancer diagnosis.3 According to the CDC, 1-2 percent of births in
the US each year are the result of IVF treatments.4

Challenges of IVF

The associated costs are one of the largest barriers to IVF accessibility in the US. While the
average cost of a single cycle and associated medications in the US is around $20,0005,
many factors come into play such as needing numerous cycles and delivery costs for the
multiple-births that are very common with IVF. One study in particular found the average
cost incurred per successful birth post-IVF to be $66,667 - ranging typically from $44,000 to
$211,940.6 A major factor in indicating IVF success is age (see Figure 1), but there have also
been noticeable trends in terms of certain conditions and the severity of infertility.

2
Anjani Chandra, Casey E. Copen, and Elizabeth Hervey Stephen, Infertility and Impaired Fecundity in the
United States, 1982–2010: Data From the National Survey of Family Growth, accessed April 10, 2024,
https://www.cdc.gov/nchs/data/nhsr/nhsr067.pdf.
3
“All about IVF,” Pregnancy, Birth and Baby, accessed April 10, 2024,
https://www.pregnancybirthbaby.org.au/ivf#reasons.
4
“IVF by the Numbers,” Pennmedicine.org, March 14, 2018,
https://www.pennmedicine.org/updates/blogs/fertility-blog/2018/march/ivf-by-the-numbers.

5
“IVF (in Vitro Fertilization): Procedure & How It Works,” Cleveland Clinic.
6
Neumann PJ;Gharib SD;Weinstein MC;, “The Cost of a Successful Delivery with in Vitro Fertilization,” The New
England journal of medicine, July 28, 1994, https://pubmed.ncbi.nlm.nih.gov/8015571/.

2
Figure 1. IVF Success Rate by Age. Data from the Reproductive Science Center, 2021, https://rscbayarea.com/ivf-success-rates).

Additionally, while IVF pregnancies are not automatically classified as high-risk, the
procedure can increase the possibilities of complications such as miscarriage, premature
delivery, ectopic pregnancy, OHSS, and multiple-births.7 The process in its entirety is
immensely time consuming and easily becomes both physically and emotionally difficult for
patients.

Preimplantation Genetic Testing (PGT)

PGT is a commonly used practice for screening embryos prior to implantation. With PGT-A
and PGT-M, embryos are pre-examined for chromosomal abnormalities and or inherited
high-risk conditions. A majority of IVF candidates are at risk of embryo complications due to
high maternal age, or choosing IVF specifically as a means of ensuring they don’t pass
chronic conditions to their offspring such as cystic fibrosis or sickle cell anemia.8 It is often
for these reasons that doctors harvest numerous eggs at a time, knowing not all will be of

7
“IVF (in Vitro Fertilization): Procedure & How It Works,” Cleveland Clinic.
8
“Genetic Testing (PGT & PGS): UCSF Center for Reproductive Health,” UCSF, accessed April 10, 2024,
https://crh.ucsf.edu/fertility-treatment/preimplantation-genetic-testing-pgt.

3
transferable quality. According to Infertility Specialist Dr. Mamie McLean, only around 70%
of collected eggs become fertilized, with only 25-50% of those actually maturing into a
transferable embryo.9 Those embryos are then subjected to genetic testing, and embryos
not transferred become either discarded due to poor quality or stored frozen for future
utilization.

Frozen Children: Alabama’s Controversial Court Case

On February 16, 2024, the state of Alabama’s Supreme Court ruled that embryos created
through IVF were considered children under the law. The case originated when a couple’s
IVF cryo-preserved embryos were the subject of a lab incident in which the embryos were
dropped and accidentally compromised. Suing the clinic under Alabama’s 1872 Wrongful
Death of a Minor Act, the case was dismissed originally but appealed and brought to the
higher court. With their final ruling, the state awarded IVF embryos full personhood.10

Consequences of the Ruling

Immediately after the ruling, three major clinics providing IVF services in Alabama shut
down their treatments entirely. The University of Alabama at Birmingham Hospital - the
largest medical center in the state - released a statement that they would no longer be
fertilizing or developing any embryos, only continuing egg retrieval. This decision was made
in light of concerns that clinic employees could face serious legal repercussions such as
murder/manslaughter charges if embryos became discarded or damaged in any way.11

The classification of embryos as having all human rights threatens the entire system upon
which IVF is built. If embryos cannot be discarded, only one may be created at a time.

9
Madeline Holcombe, “About 2% of Babies Born in the US Are from IVF. Here’s What You Need to Know about
It,” CNN, February 21, 2024,
https://www.cnn.com/2024/02/21/health/ivf-egg-freezing-explainer-wellness/index.html#:~:text=Of%20those%2
0seven%2C%20only%2025,becoming%20a%20baby%2C%20she%20said.
10
“The Alabama Supreme Court’s Ruling on Frozen Embryos,” Johns Hopkins Bloomberg School of Public Health,
accessed April 10, 2024,
https://publichealth.jhu.edu/2024/the-alabama-supreme-courts-ruling-on-frozen-embryos#:~:text=So%20in%20
fact%2C%20the%20Alabama,therefore%20proceed%20with%20their%20lawsuit.

11
Aria Bendix, “Three Alabama Clinics Pause IVF after Court Rules Embryos Are Children,” NBCNews.com,
February 23, 2024,
https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are
-childre-rcna139846.

4
Patients would be forced to have the single embryo implanted - regardless of quality or
health risks - and carry it before beginning another cycle. Not only would this increase costs
associated with each subsequent cycle, but also completely eradicate the practice of
freezing embryos, which has proved to reduce both costs and the number of procedures
needed.12 Additionally, it has long been a widely recommended strategy that doctors
implant numerous embryos for older women - producing a higher rate of pregnancy
success.13 (See Figure 2). This practice would also be eradicated following the ruling due to
multi-embryo liability worries. Thus following these trends, IVF becomes even less
accessible to Alabama residents, increasingly ineffective, and more dangerous - physically
and emotionally - for patients undergoing the treatment.

Figure 2. IVF Success Rates by Age and the Number of Embryos Transferred. Data from “Analysis of IVF live birth outcomes with
and without preimplantation genetic testing for aneuploidy (PGT-A): UK Human Fertilisation and Embryology Authority data
collection 2016–2018,” Journal of Assisted Reproduction and Genetics 38(12):1-9, December 2021).

12
Maria Godoy, “The Science of IVF: What to Know about Alabama’s ‘extrauterine Children’ Ruling,” NPR,
February 23, 2024,
https://www.npr.org/sections/health-shots/2024/02/23/1233023637/ivf-alabama-frozen-embryo-personhood-a
bortion-supreme-court.
13
Sanders KD;Silvestri G;Gordon T;Griffin DK;, “Analysis of IVF Live Birth Outcomes with and without
Preimplantation Genetic Testing for Aneuploidy (PGT-A): UK Human Fertilisation and Embryology Authority Data
Collection 2016-2018,” Journal of assisted reproduction and genetics, November 12, 2021,
https://pubmed.ncbi.nlm.nih.gov/34766235/.

5
Not only does permitting the creation of a single embryo at a time eradicate freezing
practices and raise costs, but it renders PGT an entirely useless process and tool. For older
individuals or those at risk of passing on serious conditions to offspring, PGT is the primary
purpose for undergoing IVF. As opposed to fertility being the main concern, these high-risk
patients require screening to detect dangerous abnormalities and complications. In the US,
the percentage of IVF cycles utilizing PGT was at 44.9% in 2018, and has continued to grow.
14
The modern screening process evaluates numerous embryos before selecting those to
implant and discard - maximizing embryo health and chance of implantation success. Thus,
the consequence of this recent ruling requiring the implantation of each embryo makes IVF
an entirely futile procedure for those with high-risk genetics - erasing the PGT industry in its
entirety.

Future Steps for Protecting IVF Services

Recent legislation and debates surrounding the anti-abortion movement, reproductive

rights, and the determination of “life” in Alabama have had a catastrophic and detrimental
impact on IVF services in the state. Not only have these services become widely unavailable
and increasingly inaccessible, but the classification of IVF embryos as “children” under the
law places clinics, product manufacturers, medical personnel, and patients at serious risk
of prosecution. Legislators and politicians have faced widespread criticism over the
implications of the state’s Supreme Court ruling, but it is imperative new legislation and
amendments are introduced and passed so that services may be resumed imminently.

Alabama’s Wrongful Death of a Minor Act

The Wrongful Death of a Minor Act in Alabama traces back to 1872 - before the existence of
IVF and our modern scientific understanding of the embryo. As with the national judicial
and legislative systems the United States prides itself on, it is necessary to reevaluate and
adapt state legislation to the modern age as well. In the case of IVF, strict guidelines need
to be drawn providing a distinction between lab-grown embryos and the overarching

14
Vitaly Kushnir, Eli Adashi, and Glenn Cohen, “Preimplantation Sex Selection via in Vitro Fertilization: Time for a
Reappraisal,” F&S Reports, May 26, 2023,
https://www.sciencedirect.com/science/article/pii/S2666334123000673#:~:text=In%20the%20United%20States
%2C%20the,2018%20(2%2C%203).

6
abortion and viability controversies. It wouldn’t be feasible in this brief to attempt to
resolve nationwide conflict over the human rights of an embryo and when they are
awarded, and thus IVF embryos need to be evaluated separately due to their unique
nature.

In Alabama’s Chief Justice Tom Parker’s concurring opinion of the court case, he cited
numerous bible verses and Christian ideologies. In one alarming statement, he went so far
as to claim that “[h]uman life cannot be wrongfully destroyed without incurring the wrath
of a holy God, who views the destruction of His image as an affront to Himself.”15 This
judicial reasoning is arguably a violation of the Constitution’s Establishment Clause16 -
ensuring the separation of church and state. Rather than citing religious ideologies for
interpretation of the Wrongful Death of a Minor Act, scientific experts and their input are
needed for evaluation of the medical matter that is IVF. Ultimately, it is critical that an
amendment be made to the archaic Wrongful Death of a Minor Act - providing an exception
for lab-grown embryos in our modern age. A bill as such was recently proposed by
numerous Democratic Alabama State Representatives - unclassifying embryos “outside the
uterus” as unborn children under the Wrongful Death of a Minor Act.17 Though not
advancing mainly due to Republican opposition, this bill is a model for future proposals
vital in protecting IVF.

Decriminalizing IVF Facilitators

As discussed previously, the decision by Alabama’s Supreme Court to award IVF embryos
with full rights of personhood put clinics, their providers, and the patients themselves in
great danger of persecution. Clinics and their medical personnel could face serious charges
as a result of discarding low quality embryos or lab accidents. Manufacturers for products
used for IVF could also be held liable for any damaged embryos, and the patients
themselves could be complicit in the destruction of surplus embryos. Understandably due

15
Peter Smith and Tiffany Stanley, “Chief Justice’s Christian Reasoning in IVF Opinion Sparks Alarm over
Church-State Separation,” AP News, February 23, 2024,
https://apnews.com/article/alabama-frozen-embryos-conservative-christian-views-ruling-d9b7f720b5ef865ab35
205ad36061f2d.
16
“U.S. Constitution - First Amendment | Library of Congress,” Constitution Annotated, accessed April 15, 2024,
https://constitution.congress.gov/constitution/amendment-1/.
17
Anthony Daniels et al., “HB225 INTRODUCED,” Alabama State Legislature, February 22, 2024,
https://www.legislature.state.al.us/pdf/SearchableInstruments/2024RS/HB225-int.pdf, 2.

7
to major risks and severe liability concerns, Alabama clinics stopped their services
immediately.

Just this past month, Alabama Governor Kay Ivey signed and implemented a bill aimed at
reopening clinics. While protecting IVF clinics and their staff from both criminal and civil
lawsuits, the bill awarded only criminal immunity to product manufacturers.18 While some
clinics resumed care following the bill, UAB hospital has yet to continue its IVF services. The
bill ultimately evaded addressing the status of embryos, leaving many hesitant of the future
of IVF in the state.

It is critical that new legislation be introduced providing complete immunity to the

companies providing the materials necessary for IVF. If viewed as a dangerous business in
terms of liability and lawsuits, companies could turn away from providing products for the
IVF industry as a whole. Additionally, doctors and institutions cannot be ensured complete
immunity until IVF embryos are no longer considered “unborn children” under the law.

Closing Thoughts

IVF is a modern medical process in which millions of individuals battling infertility, dealing
with health issues, unable to traditionally conceive, or of a higher age are able to become
pregnant and have children of their own. Recent legislation following the nation’s
reproductive rights controversies have put IVF at risk - specifically in the state of Alabama.
The February ruling that lab-grown embryos are to have human rights puts medical centers
and manufacturers at severe legal risk, eradicates the utilization of PGT, and makes IVF
even more inaccessible for Alabama residents.

In June 2022, the federal right to abortion was eliminated with the overturn of Roe v. Wade.
After a number of states had passed acts limiting abortions in what seemed to be violations
of the Supreme Court’s decision in Roe v. Wade, Dobbs v. Jackson Women’s Health
Organization emerged to contest a Mississippi law banning abortions after 15 weeks.19
Eventually reaching the conservative Supreme Court, the anti-abortion movement received

18
Adam Edelman, “Alabama Governor Signs Bill to Protect IVF Treatments into Law,” NBCNews.com, March 6,
2024, https://www.nbcnews.com/politics/alabama-lawmakers-ivf-protection-bill-vote-rcna141710.
19
Dobbs v. Jackson Women’s Health Organization, Supremecourt.gov (Supreme Court of the United States
2022).

8
a major win. Currently, IVF is primarily only being contested in Alabama courts. However, if
not acted upon quickly, other states may just as easily adopt similar legislation as was seen
before the right to abortion was contested by the Supreme Court. It is urgent that not only
Alabama state law be amended to protect IVF facilitators and declare lab-grown embryos
not to be “unborn children”, but nationwide protections be granted for IVF services as well.

In an era of severe nationwide controversy surrounding abortion legality and the rights of
embryos, there is little hope of an end in sight for reproductive rights. Though many
politicians in favor of anti-abortion policies claim to support the continuation of IVF
services, the practice of IVF in its entirety has become threatened by recent legislation and
decisions. It is thus imperative that this debate be settled in Alabama and protections be
extended on a nationwide scale, before other conservative states follow in their footsteps.
It is still early enough to protect IVF before it becomes eradicated in the United States, and
that starts with Alabama legislation.

9
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Chandra, Anjani, Casey Copen, and Elizabeth Stephen. “Infertility and Impaired
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ex.html#:~:text=Of%20those%20seven%2C%20only%2025,becoming%20a%20ba
by%2C%20she%20said.

10
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e-numbers.

Kushnir, Vitaly, Eli Adashi, and Glenn Cohen. “Preimplantation Sex Selection via in
Vitro Fertilization: Time for a Reappraisal.” F&S Reports, May 26, 2023.
https://www.sciencedirect.com/science/article/pii/S2666334123000673#:~:text=I
n%20the%20United%20States%2C%20the,2018%20(2%2C%203).

Neumann, P J, S D Gharib, and M C Weinstein. “The Cost of a Successful Delivery with

in Vitro Fertilization.” The New England journal of medicine, July 28, 1994.
https://pubmed.ncbi.nlm.nih.gov/8015571/.

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April 15, 2024.
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Collection 2016-2018.” Journal of assisted reproduction and genetics, November
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11