The Alabama Supreme Court has declared that frozen embryos are legally children. The ruling is narrow in scope but broad in possible implications, leaving doctors, patients, and potential patients in terrifying limbo.
To gain insight into the chaos, Glamour spoke with Sara Ainsworth, JD, senior legal and policy director at the nonprofit organization If/When/How: Lawyering for Reproductive Justice, which provides legal services regarding reproductive rights; and Cardin Cone, who conceived her first child, a son, through IVF at Alabama Fertility (a fertility clinic that has paused new IVF treatments following the ruling) and is trying to conceive another.
What is the ruling and how did this happen?
As detailed in the state Supreme Court ruling, this began when several frozen embryos were accidentally destroyed by a hospital patient in Alabama in 2020. The three couples whose embryos were destroyed then sued the fertility clinic for “wrongful death of a minor.”
On February 16, the Alabama Supreme Court ruled that frozen embryos do legally count as children. Specifically, the opinion referred to these embryos as “extrauterine children.” Chief Justice Tom Parker, in his concurring opinion, wrote, “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” which raised some eyebrows for obvious reasons.
What does this mean for IVF?
In effect, this would make IVF as it is currently practiced pretty much impossible.
The way IVF usually works is like this: A doctor retrieves eggs from a person’s ovaries, which are then fertilized by sperm in a lab to create as many embryos as possible. One or more of the embryos with the best chance at survival are then implanted in a human uterus in a process referred to as the transfer. Leftover embryos can be frozen and stored for potential future use or donation, or they may be destroyed, per the Mayo Clinic.
According to an analysis by legal writer Mark Joseph Stern in Slate, this ruling means that if someone happens to accidentally damage or destroy an embryo, IVF providers could face a wrongful death suit and millions of dollars in punitive damages, which would be ruinous.
This is why a number of clinics in Alabama have already paused IVF treatments, leaving patients in the lurch.
Cone, 33, who went through IVF in Alabama in 2022, explains how the process went for her. “I went through 12 days of [hormone] shots preparing for the retrieval. We did the retrieval and we ended up with seven embryos. Five of those matured. Three were able to be tested for genetic testing. Of those three, one had a euploid genetic makeup. One would not have survived had we implanted that embryo. And one was inconclusive.” Cone and her husband were faced with a decision: Either go through with the single embryo transfer, or improve the odds of a successful pregnancy by doing another retrieval round that would hopefully result in more healthy embryos. They decided to go ahead with the transfer, resulting in her one-year-old son.
Does this mean providers, or even patients, could be charged with a crime?
The ruling itself is limited to “whether or not the people who created the embryos can sue for alleged wrongful death of frozen pre-embryos (let’s be scientific about it, they’re pre-embryos),” says Ainsworth. By ruling that embryos can be classified as children under the state’s already existing Wrongful Death of a Minor Act, the court has created civil, but not criminal, liability for clinics, who can now be sued by the owners of the embryos. While those accused are not looking at murder charges or criminal endangerment charges or anything like that, civil penalties can still be financially ruinous. In addition, the ruling’s broader implications have patients and doctors rightfully worried and confused.
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