A hospital in Alabama has suspended IVF treatment after the state’s Supreme Court ruled that frozen embryos have the same legal rights as living children.
The court passed the most draconian anti-abortion law in the United States last week, ruling that anyone who destroys a frozen embryo can now face criminal prosecution under the Wrongful Death of a Minor Act.
With IVF providers taking legal advice and patients reported to be seeking to move their frozen embryos out of the state, the University of Alabama at Birmingham hospital announced on Wednesday that it was temporarily halting IVF services “as it evaluates the Alabama Supreme Court’s decision”.
“We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments,” it said.
Other fertility clinics in the state are still providing treatment, but the ruling, the first of its kind in the US, has caused alarm that IVF services are now threatened throughout the state. Abortion rights groups have warned that other states with strict abortion laws could follow suit, affecting the hundreds of thousands of patients who seek IVF treatment across America each year.
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IVF accounted for 91,906 births in 2021, according to the Centres for Disease Control and Prevention (CDC). In Alabama there were 1,219 IVF procedures and 407 births that year.
The ruling in Alabama followed a lawsuit brought by three couples seeking to sue for wrongful death after their frozen embryos were dropped and destroyed in an accident at a storage facility.
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In the majority decision by the all-Republican court on Friday, Justice Jay Mitchell wrote: “Unborn children are children … without exception based on developmental stage, physical location or any other ancillary characteristics.”
The White House has condemned the decision in Alabama as another example of the “chaos” that has followed the US Supreme Court’s ruling that overturned Roe v Wade in 2022, striking down the constitutional right to abortion after almost half a century.
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More than 20 states, most of them Republican-held, have passed abortion bans since the fall of Roe v Wade, creating a patchwork of rights across the country. Women in some parts of the US must now travel hundreds of miles to seek a termination.
In Alabama, a near-total abortion ban came into effect in 2022. The state now accounts for almost half of all criminal cases related to pregnancy in the US, according to the Pregnancy Justice group.
The full ramifications of the latest decision are still uncertain, but since every created embryo is now a child in the eyes of the law, several elements of the IVF process could now be in legal jeopardy. Opponents say it may now be illegal for IVF providers to freeze, thaw and test embryos. Couples seeking treatment commonly have more embryos than they use to try again if their first attempt at a pregnancy fails. That raises questions about whether clinics can legally dispose of discarded embryos.
In his dissenting opinion on the court, Justice Greg Cook said that the ruling “almost certainly ends the creation of frozen embryos through in vitro fertilisation in Alabama”, adding: “No court anywhere in the country has reached the conclusion the main opinion reaches.”
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Abortion rights are set to be a pivotal issue during the presidential election this year. President Biden has placed abortion at the centre of his campaign, laying blame for the fall of Roe v Wade at the feet of Donald Trump. The former president and frontrunner for the Republican nomination appointed three justices to the Supreme Court during his presidency. All three voted to overturn Roe v Wade.
“The person most responsible for taking away this freedom in America is Donald Trump,” Biden said at a rally in Virginia last month. “The reason women are being forced to travel across state lines for healthcare is Donald Trump.”
Warning that Republicans would force through a national abortion ban if Trump takes back the White House, the Biden campaign has launched a hard-hitting advertising blitz featuring the personal stories of women who struggled to get an abortion since Roe v Wade was overturned.
One advert features Dr Austin Dennard, an obstetrician in Dallas who was forced to flee Texas to get an abortion after discovering in July 2022, a month after the Supreme Court ruling, that her 11-week-old foetus had a terminal condition.
“In Texas, you are forced to carry that pregnancy, and that is because of Donald Trump overturning Roe v Wade,” Dennard said.
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Trump has largely sidestepped questions on abortion, wary of the public backlash since Roe v Wade was overturned. Voters have gone against attempts to codify or tighten abortion bans since 2022 — even in Republican strongholds such as Kansas and Kentucky voters have overwhelmingly chosen to uphold women’s rights when the issue is placed on the ballot.
Trump’s sole Republican challenger, Nikki Haley, endorsed the Alabama ruling. “Embryos, to me, are babies,” she said. “When you talk about an embryo, you are talking about, to me, that’s a life.”
Anti-abortion groups are pushing for further sweeping restrictions. The Supreme Court is set to rule in the coming weeks on whether to restrict access to the abortion pill mifepristone, part of a two-drug regimen that remains the most common way to get a termination in the US and a lifeline for women in states where the procedure is banned.
