A lot has been going on in Alabama regarding in vitro fertilization (IVF), and it’s been a doozy to follow. However, it’s important to remember that the attacks on IVF are a part of the greater landscape of attacks on health and well-being in the state. Alabama already has enacted an abortion ban and the state has some of the highest maternal morbidity and mortality rates in the country. Pregnant Alabamians also face increasing rates of criminalization and state surveillance, which has worsened since the Dobbs decision. So, let’s try to break down the current IVF landscape in Alabama to better understand how these threats are a part of greater attacks to reproductive freedom.
This all started with a lawsuit that was brought by three couples who received IVF care at a fertility clinic in Alabama. A a result of the IVF treatment, all three couples had additional embryos that were frozen and stored at the fertility clinic for possible future use. Devastatingly, while being stored at the clinic, the couples’ embyros were accidentially destroyed. Following the loss of the embyros, the three couples sued the clinic under the Wrongful Death of a Minor Act, arguing that the frozen embyros are children under the state law and that the loss of the embyros is the equivalent to the death of a child. Their argument was based on a previous case, in which the Alabama Supreme Court made a ruling based on so-called “fetal personhood” and held that the state’s wrongful death act could be applied to the loss of a fetus during a miscarriage.
When the case was first brought, the trial court dismissed the claims under the Wrongful Death of a Minor Act, holding that a frozen embyro is not a child under the statute. However, the Alabama Supreme Court disagreed and held that the Wrongful Death of a Minor Act does in fact apply to frozen embyros, stating that the Act applies to “all unborn children without limitation.” In addition to finding that this specific state statute can be applied to frozen embyros, the Court made a sweeping decision related to so-called “fetal personhood,” declaring that in-vitro embryos are people under the law and calling them “extrauterine children.” This decision further worsened access to reproductive health care in Alabama under the guise of protecting the “personhood” of fetuses and, now, embyros.
This decision allowed IVF providers in Alabama to be held civilly and criminally liable for the destruction of embyros during the normal course of fertility care. This holding would force providers to decide between risking fines, criminal penalties, and the potentional loss of license or to stop the provision of fertility care all together. The threat of criminal penalties is very real for Alabama providers because it’s normal and common for there to be additional unused embyros after an IVF cycle, as most providers would freeze and store unused embyros so their patients could use them in the future without having to go through the entire expensive, medically complex, and invasive egg retrieval process again. The Alabama Supreme Court’s decision has already had devestating impacts on Alabama residents’ ability to access IVF as multiple fertility care providers in Alabama are haulting IVF treatment out of fear of possible litigation and criminal penalties.
The Court’s decision will also impact the provision of fertility preservation care for people not currently seeking IVF. Preservation of embyros is also commonly used to help preserve the fertility options of a patient who will undergo medical treatments that may impact there future ability to conceive. This includes people with cancer who undergo chemotherapy, people with certain gynecologic conditions that affect fertility and/or may undergo surgical treatment, and people with sickle cell disease who undergo bone marrow transplants. Fertility preservation is also becoming more common among transgender and non-binary individuals who receive gender affirming care that may impact their fertility, including hormone therapy and gender affirming surgery. Using IVF is also common among LGBTQ partnerships as a way to build families. However, if providers face the threat of criminal penaltes because frozen embyros are considered people under the law, would-be fertility preservation patients would lose their ability to access this key aspect of reproductive care.
Following the Court’s decision, the Alabama legislature recently enacted a law to mitigate the threat to IVF care in the state. This legislation shields providers from prosecution and civil lawsuits related to the “damage or death of an embyro” during the provision of IVF care. This legislation, however, does not actually address the widespread harms to reproductive freedom caused by the Court’s decision. Instead of addressing the so-called fetal personhood implications of the decision, the anti-abortion-led state legsilature carved out an exception to protect the provision of IVF care while still allowing for other reproductive health care providers to face the threat of criminal penalties for the destruction of embyros.
The Alabama Supreme Court’s decision in this case is just one piece of the ongoing movement towards establishing “fetal personhood” and imposing reproductive control, which has obvious and disastrouss effects on the right to bodily autonomy. By preventing people from making informed and empowered decisions regarding their reproductive health and well-being, no matter what the choice is, lawmakers are infringing on individual rights and barring reproductive freedom.
Attempting to establish “fetal personhood” is one of the main tactics utilized by the anti-abortion movement. By legally recognizing a fetus or embyro as a legal person, the loss of a pregnancy can then be considered a crime under the law. This strategy of establishing legal “fetal personhood” has been growing in popularity among anti-abortion lawmakers since Roe was first decided. So far, at least eleven states have broad “personhood” language that could allow for all state laws that include protections for persons to be interpreted to include fetuses. Twenty-seven states include fetal personhood language in their anti-abortion laws. At least five states specifically define “person” in their state criminal code to include fetuses and at least two states specifically use the language “unborn child” in their criminal code.
It is unsurprising that IVF was next to face attacks from anti-abortion legislators. Major anti-abortion groups, including Americans United for Life and Students for Life of America have openly come out in opposition of IVF following the Dobbs decision. Although we are seeing some anti-abortion legislators trying to back track following the Alabama court decision, we know that all forms of reproductive freedom, including fertility care, are going to continue face an onslaugt of attacks.
Access to IVF and access to abortion care are both a part of the same fight for bodily autonomy and reproductive justice. IVF and abortion care patients are the same, as people seek out both IVF and abortion care at different points of their lives. Reproductive justice includes the right to not have a child, to have a child, and to raise a child in a safe and supportive community, and the freedom to do so without state interference. In practice, this means that the entire spectrum of reproductive health care, including both abortion care and IVF care, must be accessible to all.
Restoring and protecting access to IVF is critical, however just ensuring IVF access is not enough to protect pregnant people and their families. All forms of reproductive care must be protected and accessible throughout the country, including contraception, abortion care, pregnancy loss care, fertility care, and care throughout pregnancy and birth. Only protecting access to one aspect of the spectrum of reproductive health care leaves people behind and infringes on reproductive justice and freedom. As we fight to protect access to IVF and fertility preservation care, we also need to continue working to protect access to all forms of sexual and reproductive health care, including abortion care.
Mackenzie Darling
If/When/How Federal Reproductive Justice Fellow