Embryo loss is integral to IVF. Alabama’s ruling equating embryos with children jeopardizes its practice

An embryo is one of the earliest stages of development of a multicellular organism. But according to the Supreme Court of Alabama, it is a person, too — an unborn child, entitled to the same legal protections as any minor.

The court ruled on Feb. 16 that a fertility clinic patient who accidentally destroyed other patients’ frozen embryos could be liable in a wrongful death lawsuit, writing in its opinion that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location,” and that this includes “unborn children who are located outside of a biological uterus at the time they are killed.”

This has had immediate and profound consequences on the practice of in vitro fertilization in the state, with many fertility clinics already deciding to interrupt their services for fear of legal repercussions, including the University of Alabama at Birmingham, which has paused its IVF treatments, as has Alabama Fertility Services.

But the implications may reach beyond Alabama’s border: 11 other states have fetal personhood laws, and in at least four of them — Alabama, Mississippi, Oklahoma, and South Carolina — such laws have already been used to prosecute pregnant women for child endangerment and neglect. Like Alabama, these states could interpret their wrongful death laws as applying to embryos, putting IVF clinics in legally vulnerable situations.

“I’m sure there are a lot of lawyers across the country that are assessing the risk profile for their IVF provider clients, and with good reasons,” said Judith Daar, a specialist in reproductive health law and dean at Chase College of Law at Northern Kentucky University. “In the route to parenthood through assisted conception, embryo loss is a big part of that journey — it is a byproduct of IVF. So if the embryo loss is now associated with civil or criminal penalties, it’s understandable that providers would not want to move forward.”

In many ways, IVF is a game of numbers. Only about a quarter of fertilized eggs result in an embryo, and the chances an implanted embryo progresses into a viable pregnancy can be as low as 10% depending on a woman’s age. The more fertilized eggs, the more embryos, and the greater the chance of a pregnancy. While embryos can be transferred without freezing, cryopreservation helps avoid transferring multiple embryos at once and allows for delayed transfer when, for instance, someone is undergoing medical treatments such as chemotherapy.

This means frozen embryos, as well as embryos that end up being lost because they aren’t implanted, are necessary parts of IVF. But based on the Alabama ruling, handling them could expose IVF clinic staff to criminal or civil charges. The decision doesn’t lay out scenarios in which someone may be prosecuted, but practitioners worry that any potential damage from the routine handling of frozen embryos could result in legal issues. And the ruling also raises risks for institutions that use embryos for stem cell research.

Estimates on how many frozen embryos exist in the U.S. vary significantly. According to the Society of Assisted Reproductive Technology, 400,000 embryos have been frozen since the 1970s. The Health and Human Services department estimates 600,000, while the National Embryo Donation Center puts the figure close to 1 million.

“If the policy outcomes mandated under this decision stand, the consequences will be profound. Modern fertility care will be unavailable to the people of Alabama […]. Young physicians will choose not to come to the state for training or to begin their practice. Existing clinics will be forced to choose between providing sub-optimal patient care or shutting their doors,” wrote Paula Amato, president of the American Society for Reproductive Medicine, in a statement.

This is the first time any federal or state U.S. court has adopted such a broad definition of personhood, though it’s not the first time such a definition threatened IVF practice. In May 2022, the Louisiana House of Representatives proposed a bill that would have considered an embryo a person, though it didn’t move forward after substantial opposition from IVF doctors and practices.

“This is the logical end to the legal personhood movement, which we knew was going to be the next frontier after Roe versus Wade was overruled,” said Seema Mohapatra, a professor of Health Law at Southern Methodist University’s Dedman School of Law.

Some anti-abortion groups, however, celebrated the decision.

“The IVF industry is poorly regulated and too rarely monitored, with numerous media stories illustrating problems. Even this case began with an allegedly sloppy operation that somehow allowed a client access to a sensitive storage area where embryos were accidentally destroyed, according to media reports,” said Kristi Hamrick, vice president of media and policy at Students for Life, an anti-abortion organization, in an email to STAT.

“We don’t focus on IVF policy per se, but we believe that a conversation on this topic is overdue given the life and death stakes,” she added, characterizing the IVF industry as one that “turns surrogates and children into commodities, and that has as a central premise, the goal of creating disposable children.”

Experts noted that several couples moved their embryos to states with pro-choice legislatures in the wake of the Dobbs decision, driven by fear of the impact of abortion bans and personhood laws. And, just as with abortion bans, it may be the fear of legal consequences rather than actual prosecution that stops practices from offering fertility treatment.

“Medical providers tend, on the whole, to be fairly conservative in terms of financial and legal risks,” said Jessie Hill, a law professor at Case Western Reserve University. “Uncertainty in and of itself is a legal risk — you don’t need to wait around for a court to rule against you.”

For people looking to expand their families through IVF who live in states that either have or could adopt personhood definitions akin to Alabama’s, the impact of this decision could be devastating. The added uncertainty could lead providers who decide to remain in business to invest heavily in insurance protection, said Northern Kentucky University’s Daar, a cost that is likely to be passed down onto the patients, making IVF less affordable. Transporting embryos to states that don’t have fetal personhood laws would be an additional cost.

One way to limit IVF costs is to maximize the chances of success by creating as many embryos as possible from each egg retrieval. This typically means freezing embryos and running genetic testing that selects the most viable ones to limit the number of cycles. But taking this approach might now be legally risky, says Southern Methodist University’s Mohapatra. There are also situations in which it is nearly impossible to create and transfer one embryo at a time, which means treating the loss of an embryo as a wrongful death would all but eliminate the possibility to conceive for some people.

“It’s unfortunate because when we think about reproductive justice, it’s not just the idea that you should have a right not to have a child, but also the right to have a child,” she said.

Experts note that the Alabama decision eliminates a longstanding contradiction in the arguments of anti-abortion groups in favor of the principle of personhood, irrespective of how unpopular that principle may be among voters or businesses.

“Anti-abortion groups often seem to be OK with IVF… even though they know that that process almost inevitably results in destruction of embryos,” said Hill. “[Pro-choice groups] have always been able to point to this tension and say, ‘You don’t really think it’s a person from conception because you’re OK with IVF.’”

But one way in which the battle for IVF may differ from that for abortion rights is financial. The IVF market is estimated at around $5 billion and growing at 7% yearly, according to market insight firm Allied Market Research.

“This is big business,” said Mohapatra. “And I think that, in some ways, having those business interests speak up and lobby might drive some public opinion, but also judicial and legislative opinion.”