Why a US court ruling on frozen embryos cost many women IVF treatment

The recent ruling by Alabama's Supreme Court recognizes frozen embryos as children according to state law.

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Happy couple are holding ultrasound scan of their baby.

A recent ruling by the Alabama Supreme Court that frozen embryos are children under state law has caused several women to lose their chance of having a baby through in vitro fertilization (IVF), a fertility treatment that involves creating and storing embryos in a lab.

The ruling, which was issued in a pair of wrongful death cases brought by couples who had their embryos destroyed in an accident at a fertility clinic, has raised legal and ethical questions about the status and rights of frozen embryos, and the implications for IVF providers and patients.

According to the American Society for Reproductive Medicine, IVF is a procedure that offers a possible solution for women who have trouble getting pregnant. It involves retrieving the woman’s eggs and combining them with the man’s sperm in a lab dish to create a fertilized embryo, which is then transferred into the woman’s uterus in an attempt to create a pregnancy.

The Alabama Supreme Court’s decision to overturn a lower court’s ruling and declare that frozen embryos are children and those who destroy them can be held liable for a wrongful death was prompted by three couples who filed a case after their embryos were accidentally destroyed.

The incident occurred in 2020, when a patient wandered into the part of a fertility clinic where the embryos were being stored, handled them, and accidentally dropped them. The couple sued the clinic and the patient for negligence and wrongful death, claiming that their embryos were their children and that they had a right to life.

The court’s ruling was based on the Alabama Unborn Child Protection from Dismemberment Abortion Act, a law that was passed in 2016 and that defines an unborn child as a human being from the moment of fertilization.

The court argued that the law applies to frozen embryos as well and that they are entitled to the same legal protection and recognition as any other child.

The court also rejected the argument that the couples consented to the risk of losing their embryos when they signed the clinic’s contract, which stated that the clinic was not responsible for any damage or loss of the embryos.

Arguments

The court’s ruling was hailed as a victory by some pro-life groups and advocates, who praised the court for affirming the dignity and value of human life at every stage of development. They also hoped that the ruling would set a precedent for other states and courts to follow and that it would discourage the destruction or donation of frozen embryos.

However, the court’s ruling was also criticized by some reproductive rights groups and experts, who warned that the ruling could have chilling effects on IVF and the hundreds of women who seek it each year.

They argued that the ruling could expose IVF providers and patients to criminal prosecution and civil lawsuits and that it could infringe on the reproductive autonomy and privacy of couples who want to use or dispose of their frozen embryos as they see fit.

They also pointed out that the ruling could create legal inconsistencies and conflicts, as Alabama law does not grant the same rights and benefits to frozen embryos as to born children, such as inheritance, custody, or child support.

Consequences

The court’s ruling has already had some consequences for IVF in Alabama, as some clinics and hospitals have decided to pause or limit their IVF services, citing legal risks and uncertainties.

This has left several women who were planning to undergo IVF or use their frozen embryos in limbo and forced some of them to seek treatment elsewhere or give up on their dreams of having a baby.

“We are saddened that this will impact our patients’ attempt to have a baby through IVF,” the statement from spokeswoman Savannah Koplon at the University of Alabama at Birmingham read.

IVF procedure

IVF is done in cycles and may take more than one to create a successful pregnancy. The procedure can use the couple’s eggs and sperm or those from a donor.

One of the challenges of IVF is that it often produces more embryos than are needed for a single cycle, and the excess embryos are usually frozen and stored for future use, donation, or disposal. Frozen embryos can be safely preserved for a decade or more, and can offer a second chance for couples who fail to conceive or want to have more children.

However, frozen embryos can also pose legal and ethical dilemmas, especially when couples disagree on what to do with them, or when they are damaged or lost due to human error or natural disasters.

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