Alabama frozen embryo ruling has impact far outside state and beyond abortion

An Alabama Supreme Court decision legally recognizing frozen embryos as children has reignited concerns and confusion about the future of fertility treatments including in vitro fertilization, with both sides recognizing the broader impact of the case.

The court on Friday ruled that frozen embryos — which are used in IVF — are considered unborn children. Alabama voters amended their state constitution in 2018 to give personhood rights to fetuses, and the court decision clarified that that language extends to frozen embryos.

The ruling could have an impact well beyond abortion.

“One thing is certain: this ruling has profound implications far beyond Alabama’s borders,” said RESOLVE: The National Infertility Association in a statement, saying the new decision “may make it impossible to offer services like IVF.”

Abortion rights advocates warned that access to in vitro fertilization, or IVF, could be impacted after the overturn of Roe v. Wade in 2022 — given state efforts to change the legal definitions of when pregnancy begins and efforts to enshrine personhood protections that start at conception.

Experts typically define pregnancy as beginning when a fertilized egg has implanted itself in the uterine wall. But several state laws now define pregnancy as beginning at fertilization.

“We don’t have a real, federal definition of pregnancy,” said Kami Geoffray, president of Geoffray Strategies, a Texas-based health care consultancy. “These laws are not written with scientifically accurate language.”

Last week, the Kansas Senate held a hearing on a bill that would allow women to seek child support at any point after conception.

Oklahoma lawmakers also held a hearing on legislation last week that would define pregnancy as beginning at conception as well.

Liberty Counsel, a Christian law firm, cited the Alabama decision Monday in a brief in a separate Florida case.

The group has challenged the wording of a proposed ballot initiative in Florida that would seek to protect access to abortion.

“This important ruling has far-reaching implications,” said Liberty Counsel Founder and Chairman Mat Staver, whose organization is arguing Florida’s own laws “routinely recognize that an ‘unborn child’ has the legally protected rights of a person.”

Federal policy

Democrats have sought to protect access to assisted reproductive technology like IVF on a federal level in an effort to head off state changes.

In December 2022, Sen. Tammy Duckworth, D-Ill., called for the chamber to take up her bill that would prohibit restrictions on accessing assisted reproductive technology. Sen. Cindy Hyde-Smith, R-Miss., objected at the time.

Duckworth, who has spoken publicly about her experience with the procedure, called again on Tuesday for the Senate to take up bills that would establish a right to access IVF.

Various Republican-led state changes, she said, have left people like her “who relied on IVF to start and grow our own families — worried about whether access to these important technologies could be next.”

“No one looking to start or grow their family, in any state, deserves to be criminalized,” said Duckworth, adding the Alabama decision shows that she was right to be worried.

Rep. Pramila Jayapal, D-Wash., called the Alabama decision an “outrageous attack on personal freedoms.”

“They want to dictate the terms of how you get pregnant, when you give birth, and whether you become a parent,” she tweeted Tuesday.

Last year, the Office of Personnel Management announced an expansion of assisted reproductive technology benefits for Federal Employee Health Benefits beneficiaries. The Department of Veterans Affairs also announced last month as part of a court filing that it plans to expand its current coverage for IVF for veterans to align with the Defense Department.

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