Alabama’s IVF warning to the country

One week ago, Alabama’s Supreme Court issued a now (in)famous 131-page decision that invoked God to claim that frozen embryos count as “children” under state law.

The unprecedented legal opinion, which came out of a tragic negligence case in which families sued someone who had accidentally destroyed their frozen embryos, has sent shockwaves across the country.

Policymakers, parents, and prospective parents are realizing it could seriously imperil in-vitro fertilization (IVF) or dramatically hike its already prohibitive costs. About 2 percent of births in the US are done through IVF, which entails fertilizing eggs outside of the body and then transferring embryos to a womb.

We’re already seeing consequences.

Two days ago, the University of Alabama at Birmingham health system — the largest hospital in the state — announced it was pausing IVF, given the new risks of criminal prosecution and litigation. Since then, at least two more Alabama fertility clinics have followed suit.

Let’s be clear. This decision and its very obvious fallout are a victory for an extremist wing of the anti-abortion movement I’ve been covering for the last two years. These particular activists believe in the radical idea of “fetal personhood,” meaning they want to endow fetuses (and embryos) with full human rights and legal protection.

It’s also a reminder that the overturn of Roe v. Wade is about more than just abortion. It has ramifications for the full spectrum of reproductive health care — including birth control and fertility treatments.

Roughly one in eight couples nationwide struggles with infertility. A 2023 Pew survey found that 42 percent of US adults say they or someone they know has used treatments like IVF or artificial insemination.

“There was a time post-Dobbs where wealthier people thought they were not going to be affected ... there was a sense that IVF was in a gated country club,” Stephen Stetson, the director of Planned Parenthood Alabama, told me. “But the people in this movement have been very clear about their intentions. There is a war on bodily autonomy.”

What this means for women

This week, I spoke with Tasha Coryell as she was celebrating the second birthday of her son, whom she gave birth to thanks to successful IVF treatment in Alabama.

“I had a really good experience seeking fertility treatment in Alabama, it was one of the few medical experiences I’ve had where I felt really listened to,” she told me.

Being pregnant in Alabama, though, was scary for Tasha.

“We knew there was a potential problem with our baby, and though it turned out to be something very, very minor, there was a chance I would have to have an abortion and we weren’t at all sure I would be able to get one,” she explained. “That was the most anxiety-inducing time I’ve ever experienced in my entire life.”

Tasha and her family decided not to risk the possibility of an unsafe pregnancy in Alabama again, so after years of living in the state, they relocated last summer to Minnesota. But her 11 remaining embryos are still stored in an Alabama cryogenic facility, and she’s been considering trying for another child.

Earlier this month, before the Alabama state Supreme Court decision came down, Tasha called her fertility doctor to ask for general advice. Her doctor recommended keeping the embryos in Alabama, since they could be damaged in transport and relocation would not be cheap. But now Tasha is left to make sense of this decision. Should she move her embryos out now?

“I have no idea what’s going to happen legally,” she said. “Can Alabama force people to continue paying for embryo storage year after year after year? Do they have to exist forever?”

She knows she’s luckier than most, since she at least already has one child. “I keep thinking about people in the middle of all this who are currently injecting themselves with shots,” she said.

Even under “good” circumstances, IVFs is grueling, and it can be difficult for people to talk about. Now, for some women, it might all be for naught.

Is IVF totally over in Alabama — or, next, the whole country?

The ruling was somewhat narrow and did not weigh in on the future of other frozen embryos.

As my colleague Ian Millhiser explained, there’s a world where this decision could be relatively contained. The case is also not over; the state Supreme Court is sending it back to a district court for further litigation.

In short, this victory for the fetal-personhood movement isn’t fully set, but medical providers and patients like Tasha are already left trying to piece together answers that nobody yet has.

“It’s a climate of chaos and confusion,” Stetson, of Planned Parenthood Alabama, told me. “I can appreciate the desire of lawyers who are advising fertility clinics to be conservative. No one wants to be on the hook for any legal liability or risk of criminal prosecution if some district attorney gets the wrong idea.”

One possibility is that IVF will continue in Alabama, but embryos will be stored in other states — raising the costs and complexity of the procedure.

For the rest of the country, IVF specialists are now on high alert and warn that this first-of-its-kind decision may be just the start in courts and state legislatures.

This is all a sober reminder that for many activists, attacking reproductive health care has always been about more than just ending abortion. For these religious crusaders, nothing short of “fetal personhood” will suffice.

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