In the nearly two years since the Supreme Court overturned Roe v. Wade, we’ve witnessed the sober consequences of denying abortions to people who desperately want them. Women have been forced to continue pregnancies that have almost killed them, and given birth to children they can’t afford to care for, children conceived by rape, and children they are simply not ready to have. Now we’re seeing the flip side of the anti-abortion movement’s push to give legal rights to embryos and fetuses: the denial of pregnancy to women who fervently want children.
Last month, at least three major clinics in Alabama paused in vitro fertilization, or IVF, treatments after the state’s supreme court ruled that frozen embryos are considered children under the law. The details of the lawsuit that triggered the ruling are grim. A patient at a hospital in Mobile, Alabama, entered an IVF clinic located in the same building, removed several frozen embryos from storage, and dropped them, destroying them in the process. The families who lost embryos sued the clinic, arguing that their embryos should be protected under the state’s Wrongful Death of a Minor Act. In a momentous decision, the court agreed. “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in the majority opinion. That means that in Alabama, fertilized eggs created during fertility treatments and stored in a freezer—referred to in the opinion as “extrauterine children” in a “cryogenic nursery”—can now be considered the legal equivalent of born offspring.
In a dissent, Associate Justice Greg Cook warned that the ruling would almost certainly end IVF in Alabama as it was currently practiced. “No court—anywhere in the country—has reached the conclusion the main opinion reaches,” he wrote. Ironically, a case that started with the plaintiffs’ desire to grow their families using fertility treatments ended with a ruling that prevented others, at least temporarily, from having children that way. (Last night, Alabama passed a law framed as a short-term fix to shield IVF providers from prosecution and civil suits. But since it doesn’t reverse the underlying decision that embryos have legal rights, the future of IVF in the state remains somewhat murky.)
The Alabama Supreme Court ruling was in many ways a predictable outcome of the anti-abortion movement’s embrace of “fetal personhood,” a concept that aims to bestow embryos and fetuses with legal rights. The reproductive-rights nonprofit Pregnancy Justice warned of its rising power in a report released after Roe was overturned. “At least 11 states have extremely broad personhood language that could be read to affect all state laws, civil and criminal,” the report said. “As ascendant as the concept of fetal personhood has become, we have yet to reckon with what it really will, or could, mean.” The cause is rapidly gaining prominence: So far this year, lawmakers have introduced fetal-personhood bills in at least 14 states. Some states have already used personhood language to prosecute pregnant women for actions considered harmful to fetuses, such as using recreational drugs. IVF has not been an explicit target of personhood advocates, possibly because of its popularity among the general public. But the Alabama decision has exposed the contradiction inherent in supporting both IVF and the idea that life begins at fertilization, as many Republican lawmakers do. They are philosophically incompatible.
The Alabama Supreme Court’s decision is now reverberating through the IVF community nationwide. I’m a member of multiple infertility support groups, having gone through IVF myself in the past year. Online, I’ve witnessed widespread panic, anger, and confusion among patients in Alabama and across the country. The unanswered questions are endless: If embryos are considered children, what does that mean for their creation, storage, and destruction? (Some patients end up with leftover embryos that can be discarded or donated to other patients or to science.) Will other states follow suit? What about the implications for stem-cell research? Contraception?
I have not been able to stop thinking about the Alabama patients who, without warning, had their IVF treatments canceled mid-cycle as clinics weighed the possible legal ramifications of the ruling. “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,” said a spokesperson for the University of Alabama at Birmingham, which suspended all IVF services involving egg fertilization, embryo development, or embryo transfer. While the full toll of the closures is still being measured, one clinic that paused treatments, Alabama Fertility, told CNN it canceled an estimated 35 embryo transfers in the days after the ruling. The Center for Reproductive Medicine, the defendant in the court’s recent decision, also announced that it was halting services, saying: “We understand the burden this places on deserving families who want to bring babies into this world and who have no alternative options for conceiving.”
It’s worth explaining in detail what IVF involves and what, precisely, was lost as a result of this decision. IVF is complicated, expensive, and emotionally draining. It relies on precise timing that aligns with a patient’s menstrual cycle. First are the shots, once or twice a day, of fertility medications that help eggs mature. Some women are brave enough to inject themselves; I’m not one of them. I couldn’t even look at the needle as it went into my stomach. Instead, I covered my eyes with a sleep mask and listened to music as my husband gently administered the medicine. In an effort to make the process less horrible, I bought chocolates that I loved from my youth—Belgian, in the shape of seashells—and ate one as a reward each night. My friend posited that associating the chocolates with painful shots might backfire, and she was right; I haven’t been able to eat them since.
After about two weeks and half a dozen clinic visits, depending on how one’s body reacts to the drugs, eggs are retrieved during an outpatient surgery, typically done under anesthesia. Next, the eggs are fertilized with sperm in a lab. Then the fertilized eggs are watched for a few days to see if they develop into blastocysts. At each stage, there is significant attrition. I came out of the egg-retrieval surgery with 22 eggs. Eight survived to the blastocyst stage. After testing, only four were found to be free of genetic abnormalities.
The final step—the embryo transfer—requires perfect timing and just the right cocktail of drugs to prepare the body for the embryo in the hopes that it will implant and grow. In the weeks leading up to my transfer, I obsessed over the exact thickness of my uterine lining, which was measured at appointments every three days. Even though I was dubious about the science behind the popular advice given in fertility forums, I followed its tenets out of faith: eating copious amounts of pineapple, drinking pomegranate juice, and having sex the night before the transfer. The whole process felt like a gamble. I was scared that any single decision I made—to have a glass of wine; to take a planned trip to a day spa—could jeopardize the entire cycle, costing me months of time and thousands of dollars in medicine and doctor visits, not to mention the impact on my mental health (turns out that hormone injections make you weepy), my ability to work (interrupted by constant trips to the clinic), and my physical body (swollen, crampy, and bruised).
In the IVF forums, I recognized a common coping mechanism: relentless positive thinking. There’s a term, PUPO, which stands for “pregnant until proven otherwise.” It’s commonly used by patients after an embryo transfer, an exclamation that aims to speak their dream into existence. IVF is a gamble. Sometimes, no matter how hard you try, how much money and time and tears you invest, it simply doesn’t work. Women like me, ages 38 to 40, have a 26 percent chance of a live birth resulting from a single egg retrieval. The numbers decrease the older you are, which infuses the entire process with a sense of urgency. Knowing all of this, people still choose this path—because they want the chance to have a baby. For the unlucky women of Alabama who were in the midst of that grueling process, that chance was stripped away, their reproduction plans put on hold without their consent.
One patient who had her embryo transfer canceled detailed her devastation in an interview with ABC. She was already taking medications to prepare for the embryo transfer, and had purchased the drugs needed for the full cycle. “I’m angry that other people get to make a decision about whether or not I get to grow my family,” she said. “I’m mad that other people’s opinions affect medicine and the practice of it.”
Her comments unintentionally mirror those made by many women on the other side of this equation—those who are seeking an abortion in a post-Roe world and cannot obtain one. Those women, too, have been stripped of the right to make their own decisions about the size of their families, their medical care shaped by other people’s opinions. Although ending an unwanted pregnancy and pursuing IVF may seem like opposite ends of a spectrum, both are fundamentally about reproductive autonomy: the power to make decisions related to pregnancy and childbearing without government interference. And just as it is cruel to force someone who doesn’t want to have a baby to do so—to go through the physical experience of pregnancy and labor and delivery, to fundamentally change the trajectory of their life with the addition of a child—it is a similar form of cruelty to deny a person the chance to try for a child if that is what they desire.
The Alabama families who filed the wrongful-death lawsuit are unlikely to be pleased with the repercussions currently unfolding in the state. As a lawyer for the plaintiffs stressed during oral arguments, IVF worked for them. “They have two beautiful children in each family because of in vitro fertilization. The notion that they would do anything to hinder or impair the right or access to IVF therapy is flat wrong. That’s not why we’re here.” Amid widespread outrage, state lawmakers fast-tracked legislation aiming to restore access to IVF by providing immunity from civil and criminal liability for providers and patients. But the bill, which was signed into law by Republican Governor Kay Ivey on Wednesday night, sidesteps the larger issue. It fails to make a clear legal distinction between embryos created during fertility treatment and children. And while some of the IVF clinics that paused services said they would resume care as early as this week, the clinic at the center of the state Supreme Court decision said it would not.
“As we understand the language of the proposed law, as it stands, we are not reopening our IVF facility until we have legal clarification on the extent of immunity provided by the new Alabama law,” read a statement reported by CNN. “At this time, we believe the law falls short of addressing the fertilized eggs currently stored across the state and leaves challenges for physicians and fertility clinics trying to help deserving families have children of their own.”
Sean Tipton, the chief advocacy and policy officer at the American Society for Reproductive Medicine, called the new legislation sloppily worded and hastily crafted. “There’s a lot of unknowns about what the impact of this court case and the following legislation is going to be,” he told me. “Ultimately, we do know that there are going to be fewer babies born in Alabama to the families that so desperately want them. That is the undeniable legacy that the Alabama Supreme Court decision is leaving.”
My heart breaks for the Alabama families whose IVF plans are in limbo, because I understand what it feels like to yearn for a child and not know when you might be able to have one, if ever. I got lucky. My embryo transfer worked, and I now have a four-month-old daughter, who slept beside me while I wrote this story. I still have three more embryos, giving me the option to try for more children in the future, or not, depending on what I choose. Choose being the operative word.
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