After Alabama Supreme Court Ruling, The Future of IVF Is Uncertain

On Feb. 16, in a landmark ruling, the Alabama Supreme Court affirmed that embryos can legally be considered "unborn children," who are therefore protected under the state’s Wrongful Death of a Minor Act.

The case was brought against Alabama Fertility Services and Mobile Infirmary by three couples undergoing in-vitro fertilization (IVF). The couples’ frozen embryos were dropped and destroyed by a hospital patient who wandered into the hospital’s cryogenic storage area through an unsecured doorway.

The decision sent shockwaves through the world of reproductive health care, raising dozens of as-yet unanswered questions that could jeopardize the future of fertility treatments in Alabama — and beyond.

Indeed, less than a week later, multiple Alabama clinics (including the one named in the case) have suspended some or all of their IVF programs.

What does Alabama’s IVF ruling mean for those seeking fertility care?

Couples undertaking IVF often aim to produce as many embryos as possible in order to have the best chances at a live, healthy baby. Eggs are retrieved from the ovaries using a needle and are then fertilized by the father’s sperm outside of the woman’s body in a laboratory setting. After several days of growth, viable embryos are cryogenically frozen and implanted, one by one, into the woman’s uterus until — ideally — she has a successful pregnancy.

The Alabama Supreme Court ruling does not, by the letter, prohibit IVF — but it does pose questions that cast the legality of the process into doubt.

For instance, if embryos are children, is it legal to freeze them? What about freezing eggs? Is discarding nonviable embryos, a common practice in IVF, tantamount to mass murder? (Viable embryos may be discarded during the process, too, once a patient is satisfied with the treatment — though some are donated to other patients or for the purposes of scientific research.)

The ruling is only the beginning of the conversation, but a troubling one for those considering or in the midst of IVF — not only in Alabama, where some treatments have already been paused indefinitely, but in the rest of the country, where the fall of Roe v. Wade makes this kind of ruling eminently repeatable. (The Biden administration has called for Congress to codify abortion protections as federal law, but such an action has yet to take place.)

More about IVF — and what to do if the ruling impacts your treatment

According to the CDC, 4 million U.S. births per year are thanks to IVF — that’s about 1% to 2% of all U.S. births.

IVF is a notoriously taxing process — physically, emotionally and financially. While coverage of fertility treatments under medical insurance is increasing, just one round of IVF can cost $20,000 or more — and often, multiple cycles are necessary to achieve pregnancy. That’s before costs related to prenatal care or prenatal testing — or, of course, childrearing itself, which has grown substantially more expensive in past years.

Along with physically limiting access to women and couples who live in Alabama (and any other states that pass similar laws), rulings like the Court’s could lead to even further increases in treatment-related expenses.

In Louisiana, where a similar piece of legislation prohibits discarding viable, growing embryos, fertility doctors are forced to ship and store embryos out of state — which adds to the already-high cost of treatment.

If you’re already undergoing IVF in Alabama, your fertility clinic will be your best source of truth when it comes to next steps and available alternative options. It’s possible that Alabama clinics will find ways to coexist with this ruling like Louisiana has — in fact, on Feb. 23, Alabama lawmakers announced interest in legislation that would protect IVF treatments.

For now, the ruling only applies to Alabama. However, if you are considering IVF, be aware that other states with majority pro-life legislators could easily follow suit.

In any case, it’s worthwhile to ensure you’re prepared for the costs associated with fertility treatments — particularly if your fertility doctor of choice is out of network for your insurer (or if your policy simply doesn’t cover treatment). Supplemental funds, like those from a health savings account (HSA), could be one way to make treatment more accessible — while it’s still legal.