Alabama’s IVF ruling is already preventing people from having children: ‘Our lives are upended’

Scott and his wife had gone through the arduous process of in vitro fertilisation once before. The couple, from Mobile in Alabama, have a young child who would not exist without the treatment.

Nearly two years after their first, and after many long conversations, they decided this month that they were ready to grow their family again, using the remaining embryos they had frozen and stored with their IVF clinic.

But just as the couple were about to start the procedure, Alabama’s Supreme Court issued a ruling that threatens the future of their family, and of IVF treatment in the state.

“It’s really terrifying to wake up one morning thinking about having a second child within a year or so, and then the next morning you’re virtually upending your life,” Scott, who asked for only his first name to be used, told The Independent.

“We didn’t ask to be infertile, but here we are,” he added.

Their ordeal began last week when Alabama’s highest court issued a shock ruling that classified frozen embryos as unborn children. That definition is not one shared by scientists but is promoted by Christian fundamentalists and anti-abortion campaigners who believe that life begins at conception.

The ruling stems from a 2020 case in which a patient destroyed several embryos at an IVF clinic in Alabama. The three families who owned the embryos filed a wrongful death lawsuit, but it was thrown out by a lower court, which said the case related to property. The state’s Supreme Court overturned that ruling, declaring that the embryos were “children” and a wrongful death lawsuit could proceed.

In the majority opinion, Justice Jay Mitchell referred to the frozen embryos as “extrauterine children” and said that the state’s wrongful death law applies to “all unborn children, regardless of their location.” Chief Justice Tom Parker wrote a concurring opinion that quoted the Bible, declaring that “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

The decision caused chaos at fertility clinics across the state, many of which were unsure if the normal practices of freezing and discarding embryos were still legal.

Scott and his wife were in “wait and see mode” following the court’s decision, but a few days later they heard on the news that the University of Alabama at Birmingham health system, where their embryos were stored, had paused all IVF treatments so it could assess the legal repercussions of the ruling.

The couple had been planning to have another child in Alabama, where Scott was born and raised. Now they are considering leaving the state entirely.

“This ruling was an aggressive stance against our family. What are we to do? We are being chased out,” he said.

They haven’t yet heard from the clinic directly.

In the IVF process, an egg is combined with a sperm in a laboratory before being implanted in the uterus. The process often requires the fertilisation of many eggs to increase the chance that at least one will lead to a viable pregnancy. The embryo with the best chance of succeeding in the womb is usually transferred, while the rest can be frozen and kept, in case the transfer fails or the patient wants to have another child. Embryos that are abnormal and unlikely to result in a successful pregnancy are often discarded.

About 2 per cent of births in the US are from IVF. Globally, more than eight million babies have been born using the procedure since the first use in July 1978 at Oldham General Hospital, UK.

Scott and his wife are one of many couples and IVF patients in Alabama left confused and worried after the ruling. Forums dedicated to discussing the many twists and turns and heartaches of the process are now full of patients wondering if they will be able to start their own family. Some are desperately researching if they can move their frozen embryos.

On Thursday, Alabama Fertility’s clinic in Birmingham became the second clinic to halt IVF treatment, announcing it had “paused transfers of embryos for at least a day or two.”

Dr Michael C. Allemand, a physician at the clinic, described the ruling as “shocking” and said it has had “a substantial impact on patient care.”

“This could threaten the ability of a woman to get standard health care. Infertility is a disease and we treat disease with standard measures that are used around the world. And they are taking a decision that has the potential to take all that away,” he told The Independent.

“There will be fewer families, there will be fewer children, there will be fewer grandchildren, there will be fewer Christmas mornings with kids opening presents in front of their families, there will be fewer kids starting kindergarten and playing Little League,” he said.

“I know that sounds very emotional and sappy, but it is the truth. It is why I do what I do for these people, who otherwise couldn’t have children — to have those moments. Because they deserve them.”

His clinic’s decision followed days of intense debate among fertility physicians in the state about how to proceed. Earlier this week, an urgent meeting was called by all clinics in the state, as well as their lawyers, to consider their next steps.

At least one clinic said they were halting IVF treatment immediately. Another suggested filing 40 death certificates a day for embryos that stopped developing. Some were considering sending the frozen embryos they had stored out of the state, but were worried they would face legal repercussions for doing so.

“The mood was despondent,” Dr Andrew J Harper, the medical director at Huntsville Reproductive Medicine, told The Independent.

Dr Harper said a “Handmaid’s Tale mindset” is fuelling the attacks on IVF, and he was concerned that the decision might inspire other states.

“I do think other states will try to copycat and see if they can outdo the state of Alabama,” he said.

Sean Tipton, policy officer with the American Society for Reproductive Medicine (ASRM), spent the days after the ruling talking to physicians and clinics across Alabama.

“Physicians and the other staff at the infertility clinics in Alabama are terrified, justifiably so,” Mr Tipton told The Independent. “If, right now, they provide state-of-the-art recommended care to their patients, they’re putting themselves and their businesses at incredible risk.”

The case has drawn national attention and condemnation from the White House and pro-choice campaigners, who believe that it may lead to further attacks on IVF and even contraception, all fuelled by the belief held by the Alabama Supreme Court judges that life begins at conception.

“Clearly this is part of a very fierce anti-choice agenda in the state of Alabama. This is abortion politics through and through,” Mr Tipton said of the ruling.

The Biden campaign hit out at the decision on Thursday, setting up the ruling as a potential campaign issue for the 2024 presidential election.

“MAGA Republicans are inserting themselves into the most personal decisions a family can make, from contraception to IVF,” Biden-Harris 2024 campaign manager Julie Chavez Rodriguez said in a statement.

“With their latest attack on reproductive freedom, these so-called pro-life Republicans are preventing loving couples from growing their families,” she added.

In the meantime, Scott and his wife are trying to decide what to do next.

“We have friends and family here, our careers are here, but we’re just not sure where families like ours will stand in the future in this state,” he said.

“We want a family, and because of that our lives are being upended.”