Last week, the Alabama Supreme Court ruled that embryos should be considered children under state law. The implications of the ruling are massive, threatening the legality of fertility procedures like in vitro fertilization in Alabama and providing a path for other states to do the same. For people who have undergone the strenuous process of IVF themselves, the ruling felt personal.
“I was horrified,” said Sarah McCoy Isaacs, who conceived her son through IVF.
The case itself involved a couple whose frozen embryos had been destroyed when a hospital patient removed them from tanks of liquid nitrogen and dropped them on the floor. The court ruled that the embryos should be considered children and thus protected by an 1872 state law that allows parents to sue over the death of a minor child. “Unborn children are ‘children under the Act,” the judges wrote in the majority opinion, “without exception based on developmental stage, physical location, or any other ancillary characteristics.”
What does that mean for IVF? Nothing good, says Dr. Ilana Ressler, a reproductive endocrinologist at Illume Fertility. “This means that a fertilized egg, or embryo, which is created through the IVF process and commonly cryopreserved or frozen until use, will have the same rights as a living person,” Ressler tells SheKnows. “Essentially, a microscopic group of cells, that has the potential for life, is being treated as having the same status as a living child. This will, unfortunately, severely limit the availability of modern medicine to the people of Alabama.”
In fact, it already has. Per NBC News, three facilities in Alabama have halted or restricted IVF treatments since the ruling was handed down. The University of Alabama at Birmingham health system is one of them, sharing the news in a statement that read, “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 I.V.F. treatments.” The health system has will continue to perform egg retrieval, but has paused egg fertilization and embryo development services.
Those are two key parts of the IVF process, which begins by stimulating a patient’s ovaries with a medication that causes multiple eggs to develop, Ressler says. A doctor then removes (aka “retrieves”) the eggs and fertilizes them with sperm in a lab dish to create embryos.
The embryos are then transferred, usually one at a time, to the patient’s uterus while preserving the ones that are left behind. “The goal is generally to create multiple embryos in an IVF stimulation cycle, which can then be cryopreserved for future use,” Ressler explained. Patients can choose to transfer another embryo if the initial transfer isn’t successful or save their extra embryos for years down the road — a way of preserving their fertility and avoiding another round of egg retrieval.
The new ruling, though, “may essentially eliminate the ability for people in Alabama to cryopreserve embryos, as these treatments could lead to civil or criminal charges of health care providers,” Ressler says. If other states follow Alabama’s path, this could potentially affect millions of people, given how common infertility is: 1 in 6 couples globally deals with infertility, according to the World Health Organization, and Ressler says that one to two percent of births in the US are the result of IVF.
McCoy Isaacs’ son was one of them. “I didn’t have any idea how arduous it would be,” she says of IVF, which she began just a few months after marrying her husband. The process was complex as well; she remembers that the introductory, informational meeting alone took over an hour, and signing the documents and going over informed consent was another couple of hours.
McCoy Isaacs underwent five cycles of IVF, suffering one miscarriage in the process, before she became pregnant with and gave birth to her son, born on her 39th birthday. While the process wasn’t easy — McCoy Isaacs had to undergo a surgical abortion after the miscarriage to avoid becoming septic — she says she’s grateful that IVF exists, and that it worked for her and her husband. “My heart breaks for those who that isn’t the case for.”
After the Alabama ruling hit the Internet, McCoy Isaacs began sharing parts of her story online. Already, she says, she’s watched as IVF misinformation spreads, including the belief that embryos are selectively transferred or destroyed based on eugenics-style rationale, rather than their viability (likelihood to survive pregnancy). She’s also seen people suggest that patients simply “create one embryo and transfer it each cycle” instead of creating and preserving multiple embryos, which she calls an “absurd” suggestion. “In my cycles there were typically 8-9 eggs that resulted. Of those, about half made it to day 3 after fertilization. Of those, two might be a really good embryo, developing normally… The notion that there are dozens of viable embryos on ice is just completely wrong.”
Then there’s the idea that IVF is “somehow the easy way” to get pregnant. “I very much wish we didn’t have to undergo IVF,” McCoy Isaacs says. “It was the most difficult thing I’ve done in my life, among many hard things.”
McCoy Isaacs sympathizes with people in Alabama who are going through or considering IVF and who now find their world thrown into flux. “People who are ignorant are imposing their beliefs onto this process,” she says. “The path to a child via IVF (or IUI) is already so difficult. Making it harder is just cruel.”
Ressler echoes that sentiment. “I am saddened and upset by the Alabama ruling, as it is not a scientifically founded decision,” she says. “Similar to the overturning of Roe v. Wade, it feels that the country is taking a huge step backwards in regard to reproductive rights.“
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