(CN) — Just days after the Alabama Supreme Court ruled that extrauterine embryos are considered children under the state’s Wrongful Death of a Minor Act, nearly half of Alabama’s eight in vitro fertilization (IVF) clinics have announced they are suspending operations.
On Thursday, clinics with locations in Mobile, Montgomery and Huntsville indicated they were canceling appointments amid legal reviews of the implications of the ruling, which could leave IVF facilities, physicians and caretakers vulnerable to criminal prosecution and civil lawsuits if embryos are lost, damaged or destroyed. A day earlier, the state’s largest hospital at the University of Alabama at Birmingham announced it was suspending IVF treatments for the same reasons.
In a Facebook post, Alabama Fertility Specialists announced that in the wake of the ruling, it is faced with the "impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists." The clinic vowed to stay open as it contacted affected patients and alerted legislators about "the far reaching negative impact of this ruling on the women of Alabama."
At Mobile Infirmary, where the legal battle began, President and CEO Mark Nix issued a statement Thursday noting the decision “sadly left us with no choice but to pause IVF treatments for patients.” The decision placed a burden “on deserving families who want to bring babies into this world and who have no alternative options for conceiving," he added.
The case that ultimately reached the Alabama Supreme Court originated in December 2020 at The Center for Reproductive Medicine, Mobile Infirmary’s IVF clinic.
A patient opened a cryogenic freezer containing embryos and dropped them on the floor, destroying them. The parents of those embryos later sued the clinic for wrongful death, negligence and wantonness, among other claims.
Mobile County Circuit Court Judge Jill Phillips dismissed those claims in April 2022, citing the text of Alabama's Wrongful Death Act and historical limits on damages for emotional harm. But the case ultimately made its way to the Alabama Supreme Court, which reversed that lower-court decision on Feb. 16.
Associate Justice Jay Mitchell delivered the majority opinion, which determined that under Alabama law, embryos are in fact children.
"Unborn children are ‘children’ under the [law], without exception based on developmental stage, physical location, or any other ancillary characteristics,” the court concluded. Chief Justice Tom Parker wrote a concurring opinion finding that, “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”
The nine-member Alabama Supreme Court comprises all white Republicans, two of whom are women. Associate Justice Greg Cook, the court’s newest member, was the only to dissent from the majority opinion.
Cook argued the authors of the wrongful death law — written in 1872 — could not have foreseen the term “minor child” being applied to IVF technology. He also expressed concerns over the effects such a decision would have.
“No court — anywhere in the country — has reached the conclusion the main opinion reaches,” he wrote — adding the ruling “almost certainly ends the creation of frozen embryos through in vitro fertilization (IVF) in Alabama.” The case has since been remanded back to the circuit court for further arguments.
Cook is not the only Alabaman with these reservations. On Wednesday, the Alabama Medical Association released a statement expressing concern over the ruling. It asked the court to stay or revisit the decision.
“The significance of this decision impacts all Alabamians and will likely lead to fewer babies — children, grandchildren, nieces, nephews, and cousins — as fertility options become limited for those who want to have a family,” the statement read. “In addition, the ruling has already forced [the University of Alabama at Birmingham], the largest health-care system in the state of Alabama, to stop providing IVF services to Alabama couples."
"Others will likely do the same, leaving little to no alternatives for reproductive assistance," the statement continued. "IVF is oftentimes the only option for couples wanting to conceive.”
Facing an election in November amid the aftermath of Roe v. Wade being overturned, President Joe Biden also weighed in on the decision Thursday.
“Today, in 2024 in America, women are being turned away from emergency rooms and forced to travel hundreds of miles for health care, while doctors fear prosecution for providing an abortion,” Biden said. “Now, a court in Alabama put access to some fertility treatments at risk for families who are desperately trying to get pregnant. The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable.”
Meanwhile the Republican-controlled state legislature, which is in session through March, is reportedly considering new language to clarify the law and protect IVF treatment in the state.
On Thursday, State Senator Tim Melson, a retired anesthesiologist and Republican who chairs the Senate Healthcare Committee, told reporters he would introduce a bill emphasizing that embryos are not viable until they are planted in the uterus. Earlier in the day, House Democrats filed their own bill stating that “any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purpose under state law.”
There are eight clinics in the Alabama that offer IVF services, according to the Centers for Disease Control and Prevention. In 2021, those clinics implanted 1,219 IVF cycles in Alabama patients, resulting in 407 live-birth deliveries.
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