The Alabama Supreme Court has ruled that frozen embryos should be considered “extrauterine children,” causing many fertility clinics to halt in vitro fertilization (IVF) treatments, devastating couples who had looked forward to expanding their families. This ruling follows a case established by three couples against a fertility clinic in Mobile, Ala., for the accidental destruction of their frozen embryos. The ruling of the case allowed these couples to be entitled to “punitive damages for the wrongful death of a child.” While this ruling does protect the couples harmed in this case, the overprotection can have severe legal and ethical repercussions.
If frozen embryos are regarded as children, what legal protections and rights would they have, and how would this affect couples undergoing IVF? While the couples whose frozen embryos were destroyed are entitled to damages as provided for the wrongful death of a child, the future implications of this case are grim and confusing.
What would a precedent like this in Alabama mean for other states, especially in terms of abortions? Since the overturning of Roe v. Wade, reproductive rights and bodily autonomy have been increasingly limited. Now that the repercussions of that precedent have spilled over into IVF treatments, many patients who hold anti-abortion views feel conflicted by the government’s interference in matters they think should be more private. As Linda Greenhouse points out in her New York Times opinion piece, abortion only affects the woman, “Infertility, by contrast, is seen as a couple’s problem. That means there is a man involved (even if, for lesbian couples, for example, or for single women, that man is only a sperm donor). And when men have a problem, we know the world is going to snap to attention.”
Once the Alabama Supreme Court ruling was released on Wednesday, March 6, the Republican governor, Kay Ivey, and the Alabama legislature approved legislation that protects fertility clinics from reopening without being sued. While the bill has calmed couples undergoing IVF treatment by hastening the reopening of fertility clinics, it has also limited their ability to sue fertility clinics for embryo damages and doesn’t address the main element of whether embryos are considered children. The bill has provided significant protection for direct providers of fertility services and less protection for other handlers of frozen embryos. Protection also extends toward patients and services such as “including donating frozen embryos to medical research, discarding them or choosing not to be implanted with those that have genetic anomalies.” Interestingly, while couples undergoing IVF treatment receive protection under this bill for choosing not to implant embryos that have genetic abnormalities, Alabama only allows abortion for pregnancies posing a “serious health risk” to the pregnant individual and “not for pregnancies resulting from rape or incest” which can pose genetic abnormalities to the fetus. Ethically, if embryos are considered children, then does the discarding of embryos with genetic anomalies present the idea that some embryos are worth more than others? Aside from ethical conundrums, while this hasty new legislation does provide protection for patients receiving IVF and fertility clinics in Alabama, it is simply a bandaid on the large wound created by considering embryos as children.
The fertility industry has been booming in the past years, and the Society for Assisted Reproductive Technology reported “more than 360,000 total IVF cycles in 2021, a figure that has more than tripled since 2003,” with couples paying from around “$15,000 to $20,000 for one round of IVF,” showing the financial and emotional toll of the process. Despite the rise of this industry, there has been little federal or state regulation. At the same time, mishaps in these clinics, such as destroyed embryos, storage tank failures or swapped embryos, can cause disastrous results for couples where IVF is sometimes the last option to have biological children. The Alabama Supreme Court ruling attempts to compensate couples for their damaged embryos, but this overprotection ultimately harms patients and fertility clinics in the long term. On the other hand, the recent legislation that the Alabama legislature passed provides protection for patients and fertility clinics from the Supreme Court’s decision but creates ethical confusion when it doesn’t address the ruling that embryos are considered children.
State and federal governments should collaborate with fertility clinics and providers in order to pass legislation that can help regulate and protect these industries as well as patients receiving services from these industries. In conclusion, the recent Supreme Court ruling and the following legislation show a concerning shift in further restriction of bodily autonomy and reproductive rights without foresight of what these decisions could imply for the future.
Saisha Islam, FCRH ’25, is a biology major and English minor from New York, N.Y.
