Alabama court rules frozen embryos are children, chilling IVF advocates

The IVF community is reeling from an Alabama court decision that embryos created during in-vitro fertilization are "extrauterine children" and legally protected like any other child.

IVF advocates say the ruling by the Alabama Supreme Court could have far-reaching consequences for millions of Americans struggling to get pregnant, especially those living in states with "personhood" laws granting legal status to unborn children.

The court's ruling repeatedly invoked Christian faith and the Alabama Constitution, which specifically protects unborn children, although that has typically referred to a developing baby inside a womb.

IVF advocates have been warning for several years that such decisions were a potential repercussion of the U.S. Supreme Court's 2022 decision to overturn Roe v. Wade and permit states to ban abortions. The federal Department of Health and Human Services estimated in 2020 that there at least 600,000 frozen embryos were in storage nationwide; the National Embryo Donation Center said the number could be 1 million.

Nationally, about 2% of births year involve IVF, a process by which multiple eggs are harvested, fertilized and implanted to create a pregnancy. Alabama's ruling raises questions about what happens to those unused embryos in storage, whether authorities could order them to be implanted in unwilling parents or bring child abuse charges, and what happens if a doctor implants embryos that fail to develop.

"This is exactly what we have been fearful of and worried about where it was heading," said Barbara Collura, CEO of RESOLVE: The National Infertility Association. "We are extremely concerned that this is now going to happen in other states."

Collura said the decision will probably halt most IVF work in Alabama because doctors would be afraid that mishandling an embryo ‒ or even a miscarriage ‒ could open them up to homicide charges.

The Alabama decision heightens the stakes for both abortion-rights and anti-abortion groups during the presidential election. President Joe Biden has vowed to protect abortion and access to reproductive rights, while presumptive Republican nominee Donald Trump has reportedly told supporters he would back a ban on abortions after 16 weeks, after appointing conservative U.S. Supreme Court members during his presidency who overturned abortion rights.

IVF is responsible for nearly 100,000 babies born every year, according to the Centers for Disease Control and Prevention. Because IVF was developed after Roe became the law of the land in 1973, embryos have typically been treated as private property that donors could implant, give away or have destroyed without consequence.

The ruling came in a court case in which two couples sued after their frozen embryos stored in liquid nitrogen were accidentally destroyed. The court acknowledged its decision could reshape or even halt IVF in Alabama and potentially nationally, but it said law and faith required the finding.

"In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself," Alabama Chief Justice Tom Parker wrote in an opinion attached to the ruling.

Parker, a Republican, is a longtime abortion opponent aligned with Focus on the Family and closely allied with Roy Moore, the controversial Republican Alabama Supreme Court chief justice who was twice removed from office for misconduct. In Alabama, Supreme Court judges are elected in partisan elections for six-year terms.

In a statement, the anti-abortion group Live Action said it hoped the Alabama ruling could be applied elsewhere.

"Each person, from the tiniest embryo to an elder nearing the end of his life, has incalculable value that deserves and is guaranteed legal protection," said Live Action president and founder Lila Rose. "That basic moral truth is written on our hearts and backed up by basic science found in any reputable biology textbook. The United States Supreme Court should take notice."