Second Alabama provider stops IVF care after court deems embryos ‘children’

A second Alabama provider announced that it will pause its in-vitro fertilization (IVF) treatments on Thursday, just days after the state supreme court ruled in a first-of-its-kind decision that embryos are “extrauterine children”.

“We have made the impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists,” Alabama Fertility said in a post to its Instagram account. “We are contacting patients that will be affected today to find solutions for them and we are working as hard as we can to alert our legislators as to the far-reaching negative impact of this ruling on the women of Alabama.”

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Dr Michael C Allemand, a doctor at Alabama Fertility, said he and his partners were continuing to see patients. However, he said: “We’re going to be holding on anything that would be involving embryo management.”

The hold in care will not affect stored embryos, said Allemand, adding that he was not sure how many patients would be affected in total. Since the decision, Alabama Fertility has consulted with a bevy of legal and medical experts, he said.

“‘What is the risk?’ is really the operative question. We know there’s civil liability, but is there criminal liability?” Allemand said. “We’re not going to give substandard care. So we have to decide if that’s doable, with our partners and experts that we’re working with, to design a system here and a practice that lets us do that.”

Alabama Fertility is at least the second IVF provider to announce that it will suspend its IVF procedures, after the University of Alabama at Birmingham Wednesday said it will pause treatments in the wake of the court ruling. A spokesperson for the university, the largest healthcare provider in the state, said the institution is “saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments”.

The Alabama supreme court ruling stemmed from two wrongful death lawsuits brought against an IVF clinic after several people’s frozen embryos were accidentally destroyed. The clinic pushed back against the lawsuits, arguing that Alabama’s Wrongful Death of a Minor Act did not apply to frozen embryos, but the state supreme court ruled that the act does indeed apply.

“The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the act contains an unwritten exception to that rule for extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed,” the Alabama supreme court justice Jay Mitchell wrote. “Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”

Related: Nikki Haley says she believes embryos created through IVF are ‘babies’

A concurring opinion, written by the Alabama state supreme court chief justice, Tom Parker, repeatedly invoked the Bible. “The principle itself – that human life is fundamentally distinct from other forms of life and cannot be taken intentionally without justification – has deep roots that reach back to the creation of man ‘in the image of God’,” Parker wrote, before citing Genesis 1:27 of the King James edition.

The Alabama ruling has rocked the country. IVF patients and advocates have vigorously opposed the ruling, which they say did not deal with the vast practical implications of legally recognizing frozen embryos as people. Doctors at Alabama Fertility said earlier this week that the ruling threatened to upend several steps of the IVF process.

The decision also cements tenets of so-called “fetal personhood” into Alabama law. Establishing that embryos and fetuses are people, complete with full legal rights and protections, is a long-term goal of many within the anti-abortion movement. Abortion foes are also often opposed to IVF.

Gabrielle Goidel, a patient at Alabama Fertility, is in the midst of taking medications to prepare her body for egg retrieval. In a typical IVF process, after eggs are retrieved, specialists will combine the eggs with sperm to create embryos. One or two of those embryos may then be transferred to a patient, or they could be frozen for future use.

Goidel’s understanding is that, as of now, she is able to go through with the egg retrieval but not an embryo transfer.

“I wanted to go in straight into a transfer. I’m doing this process not to freeze my eggs, but to have a baby, to get pregnant,” Goidel said, adding that she cried when she heard the news about Alabama Fertility. “My main fear is that I would do this egg retrieval and then just have spent all this money to have my eggs frozen indefinitely.”

Related: Alabama university pauses IVF care after frozen embryos deemed ‘children’

The case that sparked the Alabama state supreme court ruling is continuing, as it will return to a lower court for further litigation. The fertility clinic defendant in the case still has other legal arguments it could make to protect it from liability, according to Mitchell’s opinion. However, the state supreme court is likely the last stop for the case, as it deals with a state court’s interpretation of a state statute and constitution, and is therefore unlikely to reach the US supreme court.

Allemand said that he hopes people will reach out to their legislators to share their thoughts on the repercussions of the ruling. Alabama Fertility is now working with national partners to rally people to the cause of protecting IVF.

“We’re a fertility clinic. We’re not set up to organize rallies,” he said. “This is outside of our normal.”

In 2021, nearly 1,000 babies were born in Alabama using assisted reproductive technology that included an embryo transfer, according to data from the Centers for Disease Control and Prevention.