This just in: in vitro fertilization (IVF) is a … crime? Or, not anymore. Actually, it never was – it’s still confusing. 

This ruling has been vastly misunderstood; the purpose of the case was not to address IVF within itself but was a response to a wrongful death lawsuit regarding destroyed embryos within a fertility clinic (I’ll elaborate on the actual case near the end of the article). If you haven’t heard, on Feb. 16, the Alabama Supreme Court ruled that embryos created through IVF are considered children and have their own personhood. 

That’s right – an embryo now has … personhood? 

So, no, the Alabama Supreme Court didn’t specifically vote to ban or stop IVF treatments, but their decision was almost as harmful as if they did. Two out of the eight fertility clinics in the state stopped all operations of IVF following the decision out of fear of civil or criminal liability for patients and doctors within the offices. 

You may be thinking, “Big deal, a few people had to postpone their treatments,” until you understand the severity of this pause. IVF treatments are already unlikely to work on the first attempt – with only a 20-30% success rate. So, for the women who were scheduled to undergo transplants for that day – their embryos may have already been thawed and prepared for transfer, and there is a very small possibility that they may have been damaged, lowering or completely diminishing their likelihood of being successfully transferred.  

In addition to this, Alabama residents had no idea if they legally had possession over their own embryos stored within a fertility cryo-preservation unit. If IVF was permanently paused within the state, many couples feared they would not be able to transfer their embryos to another state facility without receiving prosecution. 

Because, this is the American Dream, right? When people don’t know if they have control over their own sperm and eggs and where they go? 

The petitioners of the lawsuit are three couples from Alabama who all went through successful IVF treatments at the same facility and gave birth to healthy babies. As a result of the standard IVF procedure, the couples produced additional embryos that were frozen by the clinic. The clinic preserved these embryos so the couples could come back and use them instead of going through the entire process and treatment again. 

Within the initial lawsuit, the petitioners claim that their embryos being damaged by the IVF facility in charge of housing them was equal to the death of a child. In 2020, a patient entered the fertility clinic’s cryo-preservation unit and opened one of the storage tanks for the frozen embryos to be stored. When the patient grabbed the embryos stored at sub-freezing temperatures, he burned himself and dropped the embryos, which then hit the ground and were destroyed. So, this case was originally dismissed at the trial court, the couples appealed, and it was raised to the Supreme Court of Alabama – the highest court in the state. 

I do think that a lawsuit is necessary in this situation, but definitely NOT under the stature of Wrongful Death of a Child. To say that a non-functioning, no-thought-having blob of cells is equal to a living, breathing child is SUCH a stretch that I am sore without even moving. 

The Supreme Court disagreed with the initial trial court’s decision and basically said that the Wrongful Death of a Minor Act does apply to unborn embryos. But, this raises more questions than it answers. What about all of the embryos that have already been discarded? Is someone who disposes of an embryo now a suspect for murder? Or, what about the embryo transplants that aren’t successful? Would that mean 70-80% of IVF treatments would then be considered murder?

Do embryos have to be preserved for all of perpetuity now? What about IVF testing for pre-implantation genetic testing – which accounts for half of IVF transplants? 

According to Joanne Rosen, a professor in Health Policy and Management and an expert in reproductive law, “Many couples that seek IVF do so because one of the members is a carrier of a known genetic mutation associated with a serious disease or condition. Those couples seek IVF so that they can have embryos genetically tested prior to implantation, and if this genetic mutation is discovered in an embryo, the embryo is usually discarded.” 

Does this mean that this form of genetic testing is to be stopped? Approximately 2.5 million IVF transplants are completed every year – and there is no way to house this many Petri dishes, no matter how many storage facilities are bought, especially when embryos have to be in sub-freezing storage containers. 

Yes, the situation that prompted the lawsuit is unfortunate, as treatments for IVF are pricey, to say the least; Forbes estimates the cost of one IVF procedure can range from $15,000 to $30,000. Of course, insurance, grants, and some other discount programs can help with affordability, but for most couples, it is a significant cost to bear – especially when round one is not always successful. 

But, money is not equal to life, and the loss of these embryos does not, in my opinion, compare to the loss of a child, which is what this stature is supposed to be used for. It honestly feels offensive to compare it to that. 

But, with the good news, I didn’t think we would ever need, Republican Gov. of Alabama, Kay Ivey, signed a temporary law into effect that protected fertility providers from prosecution and civil lawsuits “for the damage to or death of an embryo” during IVF procedures. 

Although it does not affect the current litigation going on, the new law does allow for civil lawsuits against manufacturers of IVF-related goods, such as the nutrient-rich solutions used to grow embryos, but the lawsuit payout would be capped at the price they paid for their IVF services. 

Even I am confused, and I have been researching this for weeks. All I can say is good luck, America.