Alabama’s supreme court ruled embryos are ‘extrauterine children’. IVF patients are worried

In a first-of-its-kind decision, the Alabama state supreme court ruled on Friday that embryos are “extrauterine children” – a term that could have widespread implications for anybody who is seeking or provides in vitro fertilization (IVF). The ruling has plunged IVF doctors and patients in Alabama into chaos and uncertainty, as they scramble to untangle the practical implications of the sweeping ruling.

Patients keep reaching out to the Alabama clinic where Dr Mamie McLean works with a version of the same question: can we still become parents safely?

“They’re worried about what to do with their frozen embryos. They want to be the ones who make the decisions on how best to utilize their embryos – not the supreme court,” said McLean, who provides IVF as part of her work as an OB-GYN at Alabama Fertility, which has three locations in the state. McLean said she has spoken to more than a dozen of her patients over the last 48 hours, but: “Frankly, because of the lack of guidance, we don’t we don’t know exactly how this translates to our care.”

Since each created embryo is now a person in the eyes of the law, the Alabama ruling casts multiple parts of the IVF process into legal jeopardy. Providers may no longer be able to freeze, thaw, transfer or test embryos using best medical practices. People also frequently make more embryos than they use, and it is unclear if Alabamians would be able to ever dispose of those embryos under the supreme court ruling.

The consequences could even pose an existential threat to IVF in Alabama, as providers and patients may flee the state rather than risk liability flowing from the ruling.

“It’s a nonsensical ruling with devastating consequences for the health of the people in Alabama,” said Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine. “The court, of course, didn’t deign to deal with the real-world implications of their decision, but they are profound.”

During a typical IVF process, providers use medication to stimulate the ovaries to produce multiple eggs, which are then extracted. Experts in a laboratory fertilize the eggs with sperm to create embryos. Doctors may then transfer an embryo or two into the patient’s uterus, or freeze embryos for future use.

Keeping embryos frozen can come with a financial and potential emotional cost for prospective parents. But deciding to thaw them could also now be legally risky.

“If you’re a physician or an embryologist working in that clinic, you now stand ready to be charged with manslaughter or threatened with a wrongful death suit because one of the embryos didn’t happen to survive the freeze-thaw process,” Tipton said.

If freezing is out of the picture, experts fear that providers will be forced to transfer all created embryos to patients. If someone creates multiple embryos – as is common, to maximize the chances of success – a patient could become pregnant with twins, triplets or more, which can endanger their health.

It’s a nonsensical ruling with devastating consequences for the health of the people in AlabamaSean Tipton

“You would have a situation where the embryologist is saying: ‘Look, you have three embryos that look good, and we have no other option but to transfer all three. And that’s going to put your health at risk and your pregnancy at risk and potentially the future health of your children,’” said Barbara Collura, the president and CEO of Resolve: the National Infertility Association.

When someone is pregnant with multiple fetuses, they are more likely to give birth prematurely, which can then lead to lifelong health issues. The pregnant woman may also be at increased risk for hemorrhaging while delivering, preeclampsia, gestational diabetes or needing a caesarean.

Maternal mortality rates are already staggeringly high in the United States. Between 2018 and 2021, the rates of maternal deaths nearly doubled, from 17.4 maternal deaths per 100,000 live births to 32.9. Black women are at particular risk: in 2021, Black women died at a rate 2.6 times higher than that of white women.

Alabama, alongside Mississippi, has some of the worst maternal health rates in the country. Its overall maternal mortality rate was 41.4 deaths per 100,000 births from 2018 to 2021.

IVF providers will at times freeze embryos, then send them out for testing for abnormalities, said Dr Michael C Allemand, an OB-GYN who works at the same clinic as McLean. The supreme court ruling imperils their ability to do so, prompting concerns of increased rates of fetal abnormalities.

Women will often fail to become pregnant or miscarry after a transfer of an embryo that has an abnormality, Allemand said. However, he added: “It is certainly hypothetically possible that a woman might get a transfer of an embryo that she wished she could have tested, but didn’t, and then had a pregnancy that had a significant abnormality that now she’s got to decide what to do with – and oh, by the way, that is also challenging, because so many states are now restricting a woman’s access to making those decisions.”

More than a dozen states have implemented near-total abortion bans, including Alabama.

None of the experts who spoke to the Guardian knew the specific repercussions of the Friday ruling yet. McLean and Allemand said that their clinic is waiting on legal guidance, but has so far effectively continued to work as normal.

One in eight couples struggles to get or stay pregnant, according to Resolve.

Our patients in this state deserve the same chance to have a genetic child if they want to have one as any person in any other stateDr Michael C Allemand

“Are we just at a point where we have to move our entire practice out of state, because we can no longer safely provide the quality or standard of care that we hold ourselves to?” Allemand said. “Our patients in this state deserve the same chance to have a genetic child if they want to have one as any person in any other state. And that’s being threatened by this.”

Several other states have moved forward with measures that give embryos or fetuses some degree of legal rights and protections. These kinds of measures, which work to legally establish so-called “fetal personhood”, are often the work of anti-abortion activists who believe that life begins at conception.

Georgia, for instance, has enacted a law that allows people to claim fetuses as tax dependents. But Alabama’s supreme court is the first in the US to issue a ruling that takes such direct aim at IVF, which reproductive rights advocates have long warned will come into the crosshairs of the anti-abortion movement.

Gabrielle Goidel started taking medications to prepare her body for egg retrieval on Friday, the same day the state supreme court ruled on “extrauterine children”. When she heard the news of the ruling, she texted her family in outrage.

“I think my exact words were: ‘I want to scream, I want to make a video, I want to message all my representatives and tell them that I’m a real person and this is a decision that affects me,’” Goidel said. “I feel like they were making this as for some hypothetical embryos and hypothetical families, and they didn’t really see the consequences.”

Right now, she and her husband Spencer are moving forward with the IVF process, but they are not sure if they would ever store their embryos in Alabama. They are no longer 100% sure that they want to live in the state.

“I never ever imagined that IVF would be questioned,” Goidel said. “I figured that IVF would be seen as starting a family.”