Alabama fertility clinics suspend services due to court ruling on frozen embryos, posing risks for doctors

The Alabama Supreme Court ruled last Friday that frozen embryos can be considered children under state law. The decision allows patients to sue fertility clinics for wrongful death if embryos are accidentally destroyed and could have sobering effects for doctors providing in vitro fertilization (IVF) treatments in the state. Notably, these providers will be vulnerable to lawsuits while doing their job.^[]

Handed down by an all-Republican court, the ruling follows wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic, according to the Associated Press. Justices invoked anti-abortion rhetoric from the Alabama constitution to reinforce the rights of all unborn children, including those not considered viable, as well as frozen embryos that have yet to be implanted into a human.^[][] 

The decision demonstrates the continued and, for some, unexpected healthcare impacts of Dobbs v. Jackson Women’s Health Organization.

Kevin Doody, MD, an OB/GYN, board-certified reproductive endocrinologist and infertility specialist (REI), and co-founder of CARE Fertility, an assisted reproductive clinic located in Bedford and Fort Worth, TX, calls the news particularly alarming for doctors within his specialty. 

“I think the reason that it catches us off guard is that as fertility clinics and IVF doctors, we're kind of the opposite of abortion clinics,” Dr. Doody says. “We help people build families and have children.”

Now, he says reproductive doctors “seem to be caught in the crossfire,” and anticipates that the ruling could have “a negative impact on the ability to provide care for patients.”

While the ruling has already prompted some fertility clinics to suspend IVF services, its full impact has to be seen.

Reproductive organizations condemn ruling, express fear for doctors

Some doctors and healthcare organizations have voiced disagreement with the court, emphasizing the harms this ruling could have on doctors providing, and patients receiving, care.

In a recent press release by the American Society for Reproductive Medicine (ASRM), President Paula Amato, MD, called the court’s decision “medically and scientifically unfounded.”

The Society of Reproductive Biologists & Technologists (SRBT), a group within the ASRM, also condemned the court’s ruling.^[] 

“The Alabama ruling has significant implications for those of us who work as clinical embryologists,” Marina Gvakharia, MD, PhD, President of SRBT, said in a statement. “Clinical embryologists are entrusted with the delicate task of assisting patients through the IVF process, including the creation, preservation, and eventual use of frozen embryos. As individuals responsible for the handling and storage of frozen embryos, embryologists will now face uncertainty, ethical dilemmas, and potentially serious legal ramifications surrounding their day-to-day professional practices, which will make it impossible for them to provide the best evidence-based care to the patients who are so desperately seeking to have children.”

“We stand with Alabama’s embryologists during this difficult time, as well as the individuals and couples who dream of building a family,” Dr. Gvakharia added.

Accidents aside, doctors face risks

While IVF can be a breakthrough treatment for people experiencing infertility, procedures do not have a 100% success rate, even if accidents do not occur. In the last few years, cohort studies have reported a chance of pregnancy between 18.9% and 41.8%, with an average likelihood of 32%. These figures can be higher or lower depending on patient age and health status.^[] 

Additionally, even in the case of a successful IVF treatment, not all embryos are guaranteed to sustain development. During IVF, Dr. Doody explains, most embryos that doctors work with are not capable of sustaining development and turning into a baby. 

“Especially in older couples, the majority of embryos are not normal and will not result in pregnancy,” Dr. Doody says. “Some abnormal embryos can also result in miscarriage and are not viable genetically; they can’t make babies.” 

By this, he explains, he is not referring to one extra or missing chromosome—as can be present in babies with Down or Turner syndrome—but to embryos with multiple extra or missing chromosomes that prevent them from growing and developing. 

“To assist these embryos so that they can make a baby, it takes a lot of expertise and hard work on the part of our clinical and embryology teams, and there's always a chance that an embryo may not make it,” Dr. Doody says. “To regard that as equivalent to the death of a child is hard to imagine.”

This doesn’t mean that embryos should not be handled with the utmost care, he adds.

“These embryos are not just ‘a clump of cells,’” Dr. Doody emphasizes. “They are embryos, and we have the privilege and responsibility to protect them as best we can so that they can get to their potential.”

In addition to consequences for IVF providers, other fertility services like egg freezing could be impacted, Dr. Amato noted in the press release. According to the ruling, doctors may need to reevaluate how they can handle unused eggs after the treatment, she added.

It is yet to be seen if and how the decision will impact fertility care in other states. 

“For now, none; this is an Alabama issue,” Sean Tipton, a spokesperson for ASRM, tells MDLinx. “However, we fear it may inspire extremists in other states to expand it.”