MONTGOMERY, Ala. — The Alabama Supreme Court has ruled that frozen embryos can be considered children under state law, a decision critics said could have sweeping implications for fertility treatment in the state.
The decision was issued in a pair of wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic. Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location.”
“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in Friday’s majority ruling by the all-Republican court. Mitchell said the court had previously ruled that fetuses killed while a woman is pregnant are covered under Alabama’s Wrongful Death of a Minor Act and nothing excludes “extrauterine children from the Act’s coverage.”
The ruling brought a rush of warnings about the potential impact on fertility treatments and the freezing of embryos, which had previously been considered property by the courts. “This ruling is stating that a fertilized egg, which is a clump of cells, is now a person. It really puts into question, the practice of IVF,” Barbara Collura, CEO of RESOLVE: The National Infertility Association, told The Associated Press Tuesday.
The group called the decision a “terrifying development for the 1-in-6 people impacted by infertility” who need in-vitro fertilization.
She said it raises questions for providers and patients, including if they can freeze future embryos created during fertility treatment or if patients could ever donate or destroy unused embryos.
Sean Tipton, a spokesman with the American Society for Reproductive Medicine, said at least one Alabama fertility clinic has been instructed by their affiliated hospital to pause IVF treatment in the immediate wake of the decision. Dr. Paula Amato, president of the American Society for Reproductive Medicine, said a decision to treat frozen fertilized egg as the legal equivalent of a child or gestating fetus could limit the availability of modern health care.
“By insisting that these very different biological entities are legally equivalent, the best state-of-the-art fertility care will be made unavailable to the people of Alabama. No health care provider will be willing to provide treatments if those treatments may lead to civil or criminal charges,” Amato said.
Gabby Goidel, 26, who is pursuing IVF treatment in Alabama after three miscarriages, said the court ruling came down on the same day she began daily injections ahead of egg retrieval.
“It just kind of took me by storm. It was like all I could think about and it was just a very stressful thing to hear. I immediately messaged my clinic and asked if this could potentially halt us. They said we have to take it one day at a time,” Goidel said.