On February 16 Alabama’s supreme court ruled that fertilized, unimplanted embryos created using in vitro fertilization (IVF) are children under state law. The three couples at the center of the case, known as LePage v. Center for Reproductive Medicine, each underwent fertility treatments years ago at the Center for Reproductive Medicine, a clinic based in Mobile. The clinic stored some of their frozen embryos in a cryogenic nursery at a local hospital. It was there, the decision alleges, that in 2020 a patient wandered into the nursery, “removed several embryos,” and accidentally destroyed them. The couples sued the fertility clinic and the company that runs the hospital under an 1872 state law called the Wrongful Death of a Minor Act, on the grounds that their embryos fell under the act’s definition of “children.”
“All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death,” Justice Jay Mitchell wrote in his majority opinion, using the language characteristic of anti-abortion politics. “The question on which the parties disagree is whether there exists an unwritten exception to that rule for unborn children who are not physically located ‘in utero’—that is, inside a biological uterus—at the time they are killed.” Eight of the nine justices concluded there was not.
The ruling has sent shockwaves through the state and across the country. Fertility clinics suddenly fear that they too could be subjected to what the New York Times called “daunting new liability issues surrounding the handling of embryos.” The horrific possibilities seem endless, dystopian: Could dropping a test tube containing an embryo lead to a murder charge? Could an unimplanted embryo now be claimed as a dependent on a tax return? Is a death certificate now required if the embryo is no longer viable?
For fear of prosecution, the Center for Reproductive Medicine paused crucial parts of its IVF treatments, as did two of its peers: Alabama Fertility in Montgomery and the health system of the University of Alabama at Birmingham (UAB). On February 21 the Medical Association of the State of Alabama wrote a statement of protest. “The significance of this decision impacts all Alabamians,” the authors wrote, “and will likely lead to fewer babies—children, grandchildren, nieces, nephews, and cousins.” This is, in other words, hardly a ruling that supports human life.
State lawmakers moved quickly in an attempt to restart IVF treatments. On Wednesday the Republican-dominated legislature passed a law offering “civil and criminal immunity for death or damage to an embryo to any individual or entity when providing or receiving goods or services related to in vitro fertilization,” including retroactively. Alabama Fertility and UAB promptly announced that they would resume offering the procedure. But the law avoids taking up the question of whether unimplanted embryos are legally “children,” and many couples remain in the deepest uncertainty. The gynecologist Anne Marie Reidy, who founded a practice called Women4Women OBGYN in Huntsville and has a grandchild born via IVF, told me that the court had “opened a pandora’s box of troubles.”
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More than thirty years ago I had an ectopic pregnancy: a fertilized egg implanted outside of my womb. Doctors removed the implanted embryo along with part of my fallopian tube to keep it from rupturing, which could have caused fatal internal bleeding. As a result, when I decided to become a parent, I was a candidate for IVF. My physician evaluated me for the procedure. My partner would have to inject hormones into my body so that I could produce more eggs than usual, which would be fertilized externally before being placed in my womb. It can be a prolonged, difficult process. I know the hope and heartbreak that IVF entails, which comes even before you make the decision to inject yourself, over and over again.
To deprive parents of this option is a travesty, adding manmade cruelty to the fallibility of the body. But having been born and raised in Alabama, I am used to peculiar opinions about life and death. This was the state where, at twenty-six, my mother was sterilized. Under the Affordable Care Act, every state has the option to expand its Medicaid program to cover anyone under the federal poverty level; Alabama is one of just ten that still refuse to do so. When a doctor cut a vein to my spleen at the beginning of the Covid pandemic, sent me home, and had to remove the spleen a week later, the attorneys I consulted told me I had little legal recourse: the state’s malpractice law leaned heavily in the doctor’s favor. If I had found myself with another ectopic pregnancy, I could have been consigned to death, because the state supreme court has ruled that embryos are human in and outside of the womb.
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Even before the ruling, IVF was difficult for many women to access—and not only in Alabama. It is an expensive procedure. The patient information service FertilityIQ reports that the average cost of a single IVF cycle is more than $23,000. As most patients require more than one cycle, “the average patient will spend close to $50,000 in treatment.” In a striking number of US states, insurers have no legal responsibility to cover those costs: according to The National Fertility Association, twenty-one states, plus Washington, D.C., have passed laws requiring insurers to cover fertility treatments. Fifteen of those laws include IVF coverage; seventeen cover fertility preservation for iatrogenic (medically induced) infertility. Alabama is not one of them.
What would it look like for Alabama to really value life? Its government would support partners seeking to have children and raise them, whether through IVF or other options—not only by refraining from persecuting them but by requiring fertility insurance coverage. It would let those children have access to good health care, well-funded schools, functional sanitation, and clean air. It would show concern for children whose parents make a minimum wage of $7.25 per hour. Among the fifty states, according to US News and World Report, Alabama ranks forty-fourth in health care, forty-fourth in education, and forty-seventh in its natural environment. A few days after the court’s ruling, the state announced that it will perform its second execution using nitrogen. That is certainly an eccentric position on life: where it begins and how it ends.
