What’s next after Alabama IVF ruling?

MONTGOMERY, Ala. — The Alabama Supreme Court ruled last week that couples who were trying in vitro fertilization and lost frozen embryos in an accident at a South Alabama storage facility can sue under the state’s wrongful death law.

Since then, three providers have paused the oftenused fertility treatments while they sort out the legal implications.

The ruling is the first of its kind and extends a theory championed by some anti-abortion groups — that embryos and fetuses should be considered children and be afforded legal protections — into a new realm.

While the decision was narrow, some legal scholars think there’s potential for wider impact.

Here’s a look at some questions and answers about what the ruling could mean.

WHAT DOES THE RULING SAY?

The Alabama Supreme Court said three Alabama couples who lost frozen embryos during an accident at a storage facility could sue the fertility clinic and hospital for wrongful death of a minor child.

Justices reversed a lower court ruling that dismissed the wrongful death claim on the grounds that the embryos were not a person or child.

The court had previously ruled couples could sue when a pregnant woman lost a fetus. On Friday, the court said “extrauterine children” were also covered under the wrongful death law. “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in his opinion.

The court heavily relied on both the wording of the wrongful death statute and language added to the Alabama Constitution in 2018 stating that Alabama protects the “rights of the unborn child.”

DID EMBRYOS GAIN “PERSONHOOD?”

Mary Ziegler, the Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law, said the Alabama ruling didn’t go as far as saying embryos have all the same rights as people — at least not yet.

“The court was pretty clear that they didn’t have to say whether the fetuses or embryos had constitutional rights. They were just saying that for the purposes of this wrongful death law they’re persons or children,” Ziegler said.

However, she said the court’s decision may be read more widely.

“I think people in Alabama are rightly expecting that this is the tip of the iceberg though, and this ruling will lead to more down the road,” Ziegler said.

WHAT WILL THE RULING MEAN FOR IVF?

Three IVF clinics in the state announced they were pausing IVF services as they sort out the ruling. Another clinic said it would continue to provide IVF services, but might adjust consent forms for patients, among other possible changes.

Patients at clinics where IVF has been paused scrambled to find other providers.

In the meantime, the legal and practical fallout from the Alabama Supreme Court ruling is unclear.

Greer Donley, an associate professor at the University of Pittsburgh School of Law, said she expects clinics to offer IVF in Alabama, but believes they may choose not to store embryos in the state in the future.

Moving them elsewhere could, however, increase the logistical hurdles, cost and risk involved with the process.