What the Alabama Embryo Ruling Could Mean for the Future of Fertility Rights
When Gabrielle Goidel married her husband, Spencer, in late 2021, she couldn’t help but think of what their life together might look like. She wasn’t sure where they’d end up living or what they’d be doing in 10 years’ time, but the one thing she was always certain of was that they would have a family.
The Goidels wasted no time attempting to make this dream a reality. But their hope quickly turned to disappointment, after Gabrielle suffered three consecutive miscarriages. After more than two years of trying, they were eager to know why their plan for children wasn’t coming to fruition. Soon, they learned that because of genetic issues, it would be nearly impossible for Gabrielle to get pregnant naturally. Their only hope would be in vitro fertilization. In IVF, eggs are surgically removed from the ovaries, fertilized with sperm, and implanted in the uterus.
So in November 2023, roughly six months after Spencer had accepted his dream job as a professor at Auburn University and the Goidels had moved to Alabama, they decided to start the process. Following several months of testing, poking, and prodding, the couple officially began the IVF cycle earlier this month, and despite the physical, emotional, and financial toll it was sure to take, Gabrielle was thrilled to be one step closer to creating a family.
Then the Goidels hit another roadblock, when, in a first-of-its-kind ruling, the Alabama Supreme Court decided last week that frozen embryos should be considered children and that anyone who destroyed them could be held liable for wrongful death. At the center of the ruling were two lawsuits filed by three sets of parents who underwent IVF and had their remaining embryos frozen. The suits allege that in December 2020, another patient at the Mobile hospital that housed the parents’ frozen embryos entered the fertility clinic and attempted to remove several embryos from cryogenic storage, before dropping and therefore destroying them. In response, the parents sued for wrongful death, challenging the longtime precedent to treat frozen embryos as property and instead asserting they be granted personhood. A trial court dismissed these claims, finding that the embryos did not fit the definition of a person or child. But in a stunning reversal, the state Supreme Court disagreed, ruling on Friday that unborn offspring “located outside of a biological uterus at the time they are killed” are indeed children.
While the decision does not ban IVF outright, it is the first time a U.S. court has ruled that frozen embryos are human beings, and it could have profound effects on fertility treatments, in Alabama and across the country. The goal of IVF, which was first developed in 1978 and has advanced dramatically in the years since, is always to produce as many embryos as possible, to increase the odds that at least one will result in a successful pregnancy for the patient. But as anyone who has been through the process knows all too well, the number of viable eggs has often dwindled significantly by the time they’re ready for implantation. “It’s such a numbers game,” says Dr. Lucky Sekhon, a board-certified reproductive endocrinologist and infertility specialist at RMA of New York. “Not every egg is capable of fertilizing and turning into embryos, and even once you have an embryo, not every embryo will implant.”
In fact, the reason IVF is such a successful way to overcome infertility is because it starts with more than one egg, unlike normal ovulation, and gets as many of those eggs to grow as possible, thereby upping the chances at least one of them will demonstrate reproductive potential. Of course, this also means some of the embryos created through the process may be damaged or discarded along the way, because they don’t survive thawing or are not genetically viable, or because multiple embryos are successfully implanted and the parents decide to terminate one or more.
Parents can also choose to have their frozen embryos destroyed for any reason, such as in cases of divorce or death, or even if they simply decide not to continue trying for children. Now, however, according to the Alabama ruling, the destruction of any frozen embryo, intentional or not, would violate the state’s “wrongful death of a minor” law, leaving parents and clinic personnel potentially vulnerable to civil or criminal charges.
“As soon as the decision came in, we immediately knew that this would have a chilling effect on the delivery of care in Alabama and the health care providers there,” says Barbara Collura, president and CEO of nonprofit patient advocacy organization Resolve: The National Infertility Association. “It was and still is unclear whether they would be able to practice medicine to the standards they’ve been taught, or if they are going to try to do IVF in a different way, or if they would just flat-out leave the state.” The ruling has resulted widespread confusion among fertility providers and clinics in Alabama, leading some to make extreme decisions in an effort to proceed with caution.
On Wednesday, the University of Alabama at Birmingham health system—the largest hospital in the state and among the 20 largest in the country—announced it would pause IVF treatments for an indefinite amount of time as it evaluated the ruling and its implications. On Thursday, Alabama Fertility Specialists in Birmingham, where the Goidels had just begun their IVF treatment, announced it would be the second clinic to halt it.
To shield themselves and their embryos from harm and disruption, some Alabama parents are considering transferring frozen embryos to storage facilities in other states, or undergoing IVF outside of the state. But these are not feasible alternatives for everyone.
“In the best of circumstances, IVF is not a fun process. People do it because they want to be parents, but it is not a process that is easy or pleasant,” Collura says. “You plan for it, you prepare for it, you save for it, and so to now be told that you can’t move forward because the Alabama Supreme Court has made this decision is just unimaginable.” Even when IVF patients can find a way to continue fertility treatment outside of Alabama, as the Goidels have in Texas, doing so is not without financial, emotional, and logistical challenges.
Although Alabama’s decision is the only one of its kind in the United States, it has spurred anxiety from fertility providers and advocates across the country, who worry this will soon become a national issue. “There are probably a handful of states that are right now drafting legislation or looking at their statutes to see if there’s a wrongful death statute that could include embryos,” Collura says. Already, a handful of anti-choice and pro-fetal-personhood organizations are planning to use the Alabama ruling to target fertility treatment in other states. Liberty Counsel, a Christian ministry that claims it works to advance “the sanctity of human life and the family,” for instance, said it will use the decision as precedent to fight a proposed amendment to protect abortion rights in Florida.
IVF patients throughout the country have also expressed concern over the ruling and fear that their state could be next. Dermatologist Dr. Gabriela Soza froze her eggs in her home state of Texas when she was just 27. Although she and her husband conceived their first child naturally, after Soza suffered an ectopic pregnancy last year and lost a fallopian tube as a result, they decided to fertilize her frozen eggs and create embryos from them, so that they could have the two more children they had always planned on.
As they have begun thinking about the process, though, the question of where to create and store the embryos has become increasingly complicated. Soza’s eggs are in Texas, and although there’s a significant chance the family will move back there in the future, they currently live in New York, a much safer state for reproductive health. In the wake of last week’s decision in Alabama, the couple has decided to undergo the process in New York, despite the logistical complications.
“I love my Texas,” Soza says of the conservative-leaning state, “but I feel like somebody is probably already working on a bill like this and will screw up everything there. So there’s just more peace of mind doing it in New York.”
While the Alabama ruling and the specific circumstances driving it have caught many by surprise, critics point out that it didn’t happen in a vacuum, and note that it is part of the ongoing fight against reproductive rights, which has historically centered on abortion.
“It’s been a long road to getting here, and states like Alabama have been expanding fetal personhood in their laws and within their state Supreme Court jurisprudence for some time now,” says Lourdes A. Rivera, president of legal advocacy group Pregnancy Justice and a longtime leader in reproductive health and law. “What we saw last Friday was just the next step in the march towards establishing the rights of fertilized eggs, embryos, and fetuses as full persons. For those who believe that a fertilized egg is a person, the next logical step would be to think that a fertilized egg, regardless of whether it’s inside the body or not, is a person.”
The concept of fetal personhood, she and other reproductive rights advocates argue, is the through line connecting the banning of abortion to restrictions on contraception, IVF, and access to adequate healthcare. “This is a wake-up call,” Rivera says. “Hopefully, this helps people understand that what happens in the context of abortion and what happens to poor pregnant women, pregnant women of color, or LGBTQ people also has an impact on their reproductive freedom.”
Just as the overturning of Roe v. Wade in June 2022 encouraged many people to share their experiences with abortion in an effort to normalize it and show just how common it is, fertility advocates hope the Alabama ruling will similarly embolden people across the country to take action.
“I feel like there’s now an opportunity for people to come out of the shadows and share what IVF is and share their personal experiences with it,” Collura says. “Over eight million babies have been born through IVF, so if we can get people sharing their story and talking about this, even in their own circles, that’s going to make a huge difference.”
In just a matter of days, the Alabama ruling has already had an undeniable impact on countless IVF patients and providers throughout the state, and has caused no shortage of confusion and anxiety for those across the country.
“This decision makes it very clear that these issues are not siloed, and I do believe that this could be an indication of some success for the fetal personhood movement,” says Rivera. “But I’m also hopeful that this shocks people enough to wake them up, to show them they can’t be complacent and that they need to fight back. We are committed to this fight for the long haul, and we believe that most people in America are on our side and that eventually our side will prevail.”
On March 6, after the publication of this article, the Alabama State Legislature passed a bill granting civil and criminal immunity for in vitro fertilization service providers and receivers. Republican Governor Kay Ivey signed the bill into law within an hour of it passing the Alabama Senate, allowing IVF clinics to resume services immediately.
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