An Alabama Supreme Court decision that gives fertilized eggs the same legal status as children in civil cases could disrupt care for families and physicians – but its effect remains unclear, experts said.

Lauren Olson is 26 weeks pregnant with a girl conceived through in vitro fertilization. Before her pregnancy, she suffered from endometriosis. When she underwent surgery to remove scar tissue, her doctors discovered her fallopian tubes were completely blocked.

“That’s when we found out that IVF or adoption, or something like that would be our only way to have a child,” Olson said.

Her employer offered insurance coverage for fertility treatment, and Olson and her husband found out they were expecting after fertility specialists transferred the first embryo. However, the decision could affect their plans for the remaining 10 embryos.

On Feb. 16, the Alabama Supreme Court released a decision granting embryos the same legal status as children in a wrongful death case brought by three families. Now Olson is unsure of whether she will be allowed to donate some of her remaining embryos to science as she had planned. She said she spoke to her doctor, who mentioned a possible plan to move the embryos out of state.

The case has changed the discussions she has had with her husband about using the embryos in the future or donating them to families in need.

“We were never really worried because we thought we had all this time to figure out what we wanted to do with them,” Olson said.

Families like hers could end up paying for years of storage for unused embryos, driving up the costs of care, according to a brief filed by the Medical Association of the State of Alabama.

“The Appellants’ position would require such embryos to remain in cryogenic storage even after the couple who underwent the IVF treatment have died and potentially even after the couple’s children, grandchildren, and even great grandchildren have died,” the medical association brief said. “This absurd result would be the outcome if this Court extends wrongful death liability to the destruction of cryopreserved embryos.”

Doctors typically remove and fertilize several eggs before implanting the ones with the best chance of growing into a healthy fetus, said Dr. Paula Amato, president of the American Society for Reproductive Medicine. The other embryos can be frozen for later use, stalling their development at a very early stage.

“By insisting that these very different biological entities are legally equivalent, the best state-of-the-art fertility care will be made unavailable to the people of Alabama,” Amato said in a statement. “No healthcare provider will be willing to provide treatments if those treatments may lead to civil or criminal charges.”

The ruling could open the door to lawsuits in all cases where embryos don’t survive being thawed and transferred to the uterus, said Sean Tipton, spokesman for the American Society for Reproductive Medicine. The threat of legal action could keep doctors and clinics from offering IVF in Alabama, the society’s statement said.

“Modern fertility care will be unavailable to the people of Alabama, needlessly blocking them from building the families they want,” Amato said in the statement. “Young physicians will choose not to come to the state for training or to begin their practice. Existing clinics will be forced to choose between providing sub-optimal patient care or shutting their doors.”

Babara Collura, CEO of Resolve: The National Infertility Association, said the decision raises a lot of questions about the future of advanced fertility treatment in the state. The process of freezing and storing embryos has become safer and more reliable over the years, making fertility treatment easier and more accessible. But the Alabama ruling could endanger that progress, she said.

“This ruling did not say IVF is illegal,” Collura said. “But it did say the embryos that are handled in an IVF process are children. Are people. And that begs the question: Can we freeze a human? And if we freeze a human, who is liable for that?”

The three families sued in Mobile after someone gained access to an unlocked cryogenic freezer, removed their embryos and destroyed them. A circuit court judge ruled they could not sue for wrongful death of a child because the frozen embryos did not count as children under the law.

A majority of Alabama’s Supreme Court justices reversed that ruling in the Feb. 16 decision that defined a fertilized egg at the earliest moment of conception as a child.

The Wrongful Death of a Minor Act “applies to all unborn children, regardless of their location,” wrote Alabama Supreme Court Justice Jay Mitchell. “[T]he Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

Dr. Mamie McLean, a specialist in reproductive endocrinology and infertility at Alabama Fertility, said she had heard from patients worried about their treatment and embryos. For now, she said she is moving cautiously forward with IVF treatment and waiting for more clarity about what the ruling means.

“I have had five patients call me today, worried about their care, their embryos,” McLean said. “Wanting to make decisions with me, their physician, about the disposition of their embryos and concerned that this will limit their ability to build their family. I am concerned that this decision is adding to the anxiety that they feel.”

McLean said she wants Alabama leaders to know that experts in in vitro fertilization are eager to be involved in future discussions that could affect her patients’ care.

“Both sides of this come at this question with the same goals in mind, which is respect for human life and the desire to build healthy Alabama families,” McLean said. “I feel certain that with education and collaboration by experts in the field, such as physicians and scientists, we will be able to create a path forward that does not harm the women and families of Alabama.”

Some politicians who oppose abortion have recently made statements against the creation and destruction of embryos during the IVF process. Collura said she is concerned the Alabama decision could spread to other states. Supporters right now are hailing it as a victory for the anti-abortion movement.

Leaders of Liberty Counsel, a conservative anti-abortion organization, said the ruling reinforces the belief that all embryos and fetuses deserve the same protection as children. The decision could have implications on abortion and reproductive care in other states.

“Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location,” said Mat Staver, founder and chairman of Liberty Counsel. “This important ruling has far-reaching implications. Liberty Counsel is using this precedent to argue that Florida’s proposed deceptive and misleading abortion amendment violates Florida’s own laws that routinely recognize that an ‘unborn child’ has the legally protected rights of a person. Unborn life must be protected at every stage.”