Will Alabama ruling cancel IVF?

Following an Alabama Supreme Court ruling on in vitro fertilization, several fertility clinics in the state said they would halt the procedure. Dr. Brett Davenport’s clinic was not one of them.

“We’re still going to perform IVF as we always have,” he said in a video posted on Wednesday to the Facebook page of the Fertility Institute of North Alabama in Huntsville. “We’re still going to offer cryopreservation of embryos, we’re going to offer the biopsy and pregenetic testing of embryos.” The main question that remained, he said, was how the ruling would affect how they treat embryos once they’re thawed.

The Alabama Supreme Court ruled Feb. 16 that human embryos outside of the womb are considered children under the state’s Wrongful Death of a Minor Act. The decision sparked concern among fertility providers about the legal repercussions of continuing to follow standard IVF practices. One of them is Infirmary Health’s Center for Reproductive Medicine in Mobile, the clinic at the center of the lawsuit.

“The ruling has declared that embryos are children by Alabama law,” Davenport told WORLD. “I don’t think any of us in this field are comfortable with thawing and discarding embryos with that nomenclature and a murder charge on the table.”

But pro-life legal groups say the ruling does not allow for that type of criminal prosecution. While the decision has raised crucial questions about what constitutes the humane treatment of human embryos at the earliest stages of development, these groups say the effect of the ruling is limited in scope and should not drastically change the practice of IVF in the state.

“The ruling … is specifically focused on the Wrongful Death of a Minor Act, which is a civil statute,” said Danielle Pimentel, policy counsel with the pro-life Americans United for Life. “So it’s not talking about … the state’s criminal laws or homicide or manslaughter laws.” She said it doesn’t limit fertility clinics from operating in Alabama.

The legal advocacy group Alliance Defending Freedom noted in an emailed statement that the ruling “does not prohibit fertility treatments; it simply protects unborn children created from IVF under the Alabama Wrongful Death statute.”

Laws in other countries regulate the practice of IVF, sometimes limiting the number of embryos that can be implanted at once. Italy for a time banned the freezing of embryos. Such regulations are not common in the United States. One of the Alabama high court justices wrote in a concurring opinion that United States is a “Wild West” of sorts when it comes to reproductive technologies. Alabama itself, he writes, has no law specifically regulating IVF.

The Alabama legislature passed the Wrongful Death of a Minor Act in 1872. It allows parents to bring a civil lawsuit within six months of their child’s death against anyone who caused the death through negligence or a direct act.

With this particular ruling, the Alabama Supreme Court overturned a lower court’s decision dismissing the wrongful death claims of three sets of parents who sued Infirmary Health’s Center for Reproductive Medicine in Mobile over the demise of their frozen embryos in December 2020. According to the ruling, a patient from the hospital connected to the fertility center wandered into the cryogenic nursery storing the embryos and removed several. The patient dropped them on the floor when the subzero temperatures freeze-burned the patient’s hand.

Pimentel said the decision doesn’t address the question of whether or not the fertility center in Mobile and the other defendants in the case actually violated the act. “It was merely just answering the question before it, which was … whether that statute does apply to embryonic children. And it found that it did,” Pimentel said.

The case now returns to the lower courts, where the parties will hash out remaining questions regarding the facts of the case.

Davenport said he agrees with the principle of protecting unborn babies in utero. But he disagrees with the ruling’s application of the wrongful death law. “That law was never intended to go in this direction or to apply to IVF,” he said. “And I’m very hopeful that the legislators agree as a whole with that statement and that it gets fixed pretty soon.”

On Thursday, Democratic lawmakers in Alabama introduced a bill stating that human embryos outside of a human uterus are not unborn children or human beings under state law. Republicans also have legislation in the works to address the court’s ruling.

Dr. John Gordon, a reproductive endocrinologist in Knoxville, Tenn., does not genetically test or discard embryos. But he said this sort of ruling in his state could raise concerns even about his own conservative IVF methods. He noted the constant possibility of human error involved in IVF, including risks such as a doctor dropping a petri dish containing human embryos.

To Davenport in Huntsville, those types of risks are common to the medical field as a whole. He pointed out that in any surgery he performs, his patients sign paperwork agreeing that they know there’s a risk of death or other physical injury inherent in the procedure. “To me, this is no different,” Davenport said. “We do have in our consents, and we did even before this ruling, that natural disaster, human error, technical failures, mechanical failures, any unforeseen events can affect and injure or cause these embryos to stop growing.”

Despite Davenport’s concerns about continuing with the discarding of embryos, Pimentel said the ruling probably wouldn’t prevent that practice among IVF facilities, as long as the parents agree to it. “I don’t see how the ruling would prohibit a fertility clinic from doing that if it has the consent of the parents and the parents are agreeing for that to happen,” she said.

Although the ruling doesn’t have the effect of providing blanket protection for IVF embryos in the state, Pimentel said it has still raised important discussions. “It’s at least one state court acknowledging that … embryonic children are, in fact, human persons,” she said. “And I think it again opens a good dialogue between pro-lifers to discuss that and discuss the legal status of these embryos and the fact that unfortunately, in many states, they are treated as property and discarded as property … when they are, in fact, human persons.”