Joette Katz Authors Law Tribune Article Entitled "Alabama Becomes Test Tube for Infertility Treatment Restrictions"

Last week the Alabama Supreme Court issued a ruling that will transform infertility care across that state, potentially setting the stage for a ruling that an embryo outside the womb holds constitutional rights.

In LePage v. Center for Reproductive Medicine, P.C., the Alabama Supreme Court expanded upon its precedent that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act (a statute that allows parents of a deceased child to recover punitive damages for their child’s death) to hold that the death of embryos kept in a cryogenic nursery falls within the act.

Let me reiterate the holding: extrauterine embryos — that is, unborn “children” who are located outside of a biological uterus at the time they are discarded or destroyed are protected under the Wrongful Death of a Minor Act. In short, the act applies to all unborn children, regardless of their location or stage of development.

The case began when three Alabama couples visited a fertility clinic in Mobile to pursue in vitro fertilization. The three couples elected to store their excess embryos at the Mobile clinic from 2013 to 2016. In December 2020, however, a patient from an attached hospital wandered through an unsecured doorway and handled and destroyed some of the embryos. The plaintiffs sued, first alleging that the clinic was negligent in how it monitored the embryos, and in a much more controversial claim, they alleged that their embryos were “children” or “persons” under the state’s wrongful death of a minor law.

As the Supreme Court noted, the parties in the case agreed upon certain principles, which for the purposes of this editorial I am not challenging. The parties agreed that an unborn child is “a genetically unique human being whose life begins at fertilization and ends at death; and that an unborn child usually qualifies as a human life, human being or person, as those words are used in ordinary conversation and in the text of Alabama’s wrongful-death statutes.”

Everyone acknowledged that these principles were true throughout all stages of an unborn child’s development, regardless of viability. As the dissent pointed out, “There is no dispute in these cases about when life begins. All parties agree on that issue. I specifically asked the defendants at oral argument: “[s]o, is it your position that … these were lives?” And they responded: “It is, Justice Cook. I think that the … embryo is a life, but the issue today is whether an embryo is a child protected under the [Wrongful Death Act].”

The very narrow issue before the court was whether “there exists an unwritten exception to that rule for unborn children who are not physically located in utero.” Acknowledging the “weighty concerns” at issue, the court chose not to resolve them, concluding that “neither the text of the Wrongful Death of a Minor Act nor this Court’s precedents exclude extrauterine children from the Act’s coverage. Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.” In short, it did not matter to the court that the embryos were frozen and had not yet been implanted in the uterus.

Because of the majority opinion, I think that we can safely assume that the creation of frozen embryos will soon no longer exist in Alabama because “no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.”

As a former DCF commissioner, I think about the thousands of children available for adoption every year. Maybe this decision will eliminate IVF as an option, and those would be parents will turn to adoption. But there are better ways to encourage adoption than to eliminate medical alternatives.

Annually, across the US, approximately 2% of births involve IVF. The success rate of each IVF cycle varies based on the given the age and previous medical condition of the patient. Because women who rely on fertility clinics generally have experienced trouble getting pregnant, doctors routinely create and store excess embryos so that patients can try again if a first attempt fails. There is no need for someone to undergo costly, taxing rounds of hormone treatments to stimulate egg production, followed by the surgical retrieval of eggs.

It is current practice in IVF, according to an amicus brief filed by the Alabama Medical Association, to extract and fertilize multiple eggs, freezing the embryos that were not implanted so that there is no need for someone to undergo costly, taxing rounds of hormone treatments to stimulate egg production, followed by the surgical retrieval of eggs — “it is safer, more efficient, and simply better.” And in some cases, as in the Alabama trial, the fertilized embryos are frozen and stored in tanks containing liquid nitrogen. They can be held for up to a decade.

It is also well known that IVF is expensive — an average cycle can cost anywhere between $12,000 and $30,000, even when patients can use embryos they’ve already created. Generally, because patients have more embryos than they implant in a given cycle, they can store, give to other patients, or donate these excess embryos for research.

After this ruling, reproductive health care providers are forecasting what such a decision may mean: the end of IVF and potentially other fertility treatments in Alabama. Regarding what happens to their cryopreserved and stored embryos should they not use them, this ruling stands in the way of people’s reproductive autonomy, potentially requiring any frozen embryo to be stored indefinitely, as the medical association brief put it, “even after the couple who underwent the IVF treatment have died and potentially even after the couple’s children, grandchildren, and even great grandchildren have died.” Patients currently undergoing IVF don’t know how to proceed, but one thing seems clear, parents will not be able to discard embryos, even in the case of divorce or death.

As Justice Cook’s dissent noted: “No rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.” As predicted, within days, at least one fertility clinic in the state suspended offering IVF, for fear of possible prosecution. The Alabama Medical Association, which also weighed in prior to the court’s decision, warned that such a ruling would create an “enormous potential for civil liability” for fertility specialists, because embryos can be damaged or become unsuitable for pregnancy at any time during an IVF process, including when they are being thawed.

Embracing the idea of personhood before birth is one thing, embracing it outside the womb suggests a new term: “extrauterine children”. We also may welcome more widely the practice of adopting embryos. After all, the consequence of the Alabama decision is clear: if an embryo is a person, it cannot be destroyed, or donated for research. But should it even be stored for future use, because, if there’s a power outage, are we looking at manslaughter charges?

We can all imagine a parade of horribles following the LePage decision, but one thing seems clear: more people who want to be parents will be unable to achieve that dream. The ruling is extraordinary; putting aside the question of personhood before birth, applying personhood to embryos that haven’t been implanted in the uterus is a ruling that is not just bizarre but one whose consequences are likely to be profound. In theory, there are ways for couples in the Alabama case to protect themselves against medical negligence, and even express a theory of liability that frozen embryos or life in the womb have value, without claiming that a frozen embryo not contained in a biological womb is a person.

In the wake of this decision, the Alabama legislature is looking to revisit the statute. We should be careful what we wish for as some of the language in the opinion of the Chief Justice is pushing lawmakers to go further. In the meantime, this opinion traversing a narrow statutory path looks like the Champs-Élysées to further restrictions.

Copyright 2024. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune and Law.com [https://www.law.com/ctlawtribune/2024/02/26/alabama-becomes-test-tube-for-infertility-treatment-restrictions/#:~:text=Last%20week%20the%20Alabama%20Supreme,the%20womb%20holds%20constitutional%20rights.], reprinted by permission