The recent Alabama Supreme Court decision equating frozen embryos with children felt like a personal assault on me as a provider of reproductive services, on my fellow fertility experts, and on the patients with whom we work to help build the families that they so desire. Regrettably, it was a decision that we had anticipated since Roe v. Wade was overturned. A decision that opened the floodgates to further restrictions and consequences that could ultimately impact the use of fertilized eggs and the practice of reproductive medicine broadly.
For years, we have seen states across the country introduce and enact legal personhood legislation, ascribing the rights of individuals from conception and at other various points of pregnancy and fetal development. Now, Alabama’s Supreme Court decision takes these personhood rights a step further, jeopardizing access to in vitro fertilization (IVF).
The Value of IVF and the Process Behind It
As a reproductive endocrinologist, I spent 15 years from pre-med through training to become a physician. Along the way, I completed a residency in obstetrics and gynecology and a fellowship in reproductive endocrinology and infertility, as well as a fellowship in medical ethics. Every day, I see individuals on their journey to creating a family. Some are couples who have tried unsuccessfully for years to have a child; some are same-sex couples seeking to have biologically or genetically related children; some are young women looking to freeze their eggs and embryos before cancer treatments rob them of their reproductive potential; and some are people who choose to be single parents. What each of my patients has in common is the simple wish to become parents and raise children, and the hope that they can do this privately and without intervention from those who are not stakeholders in their futures. Every day, I try to fulfill this wish. While the success of IVF is not guaranteed, it does represent the best chance many people will have of carrying and delivering a safe and healthy pregnancy.
IVF is nothing short of a miracle of science. While a perfectly fertile couple having regular intercourse has a 15-20% chance of achieving a successful pregnancy each month they try, IVF success rates can be as high as 70% per embryo transferred.
Integral to this high rate of success is our ability to use preimplantation genetic testing to evaluate and select which embryos will have the best chance at implanting and ultimately resulting in a live birth. There is perhaps no situation in which this technology is more impactful than for my patients who have lost a child to a genetic disorder. For them, IVF is used to select a preimplantation embryo unaffected by the disease that robbed them of a child, and which allows them to conceive a subsequent pregnancy with the knowledge that they will not lose yet another child to the same disease. There is nothing more gratifying to me than receiving a baby picture from these relieved parents who are infinitely grateful for the opportunity to benefit from IVF in this most impactful of ways. I also often screen embryos for chromosomal abnormalities, preventing the transfer of embryos that will not implant, or avoiding the transfer of an embryo that would have resulted in a miscarriage, with all of the heartache that goes along with it.
But for all of this to work, I must create embryos — enough embryos to have a chance that at least one is viable. And when I do this, I often fertilize more eggs than will ultimately be used. Selecting the healthiest embryos often necessitates leaving some behind. It would be wonderful if we could only create the number of embryos that are needed for the number of pregnancies an individual or couple desires, but that is not how the science works. That is not the reality of IVF. The discarding of embryos is inherent to the IVF process.
A Harmful Law and a Dangerous Precedent
To connect this process with wrongful death, as the Alabama Supreme Court has done, is unconscionable and will leave patients without access to IVF. The threat that discarding embryos could result in prosecution has introduced a risk to practice that is insurmountable for fertility clinics, leaving many patients in Alabama at risk of finding themselves without options for fertility treatment and with their embryos literally and figuratively frozen in place.
Despite the somewhat lacking law passed by Alabama’s legislature to shield doctors from potential legal liability following the Supreme Court’s decision, many fertility experts will remain wary of training or working in the state. Furthermore, if the courts do not reverse the ruling assigning the status of personhood to embryos, additional ancillary services that support fertility practices — such as embryo transport companies — will understandably remain unwilling to take the risk of operating in the state.
Though I practice in Illinois, a state whose citizens enjoy strong reproductive freedom protections, I fear that policies like Alabama’s will spread across the country. We are all in this together. Patients travel and physicians move from state to state. Regardless of where Americans live, we should all have equal access to reproductive freedom.
These judicial and legislative efforts reflect a fundamental and dangerous ignorance of science, human physiology, and the medical field. This decision will have lasting consequences for people in need of fertility care and for those who provide that care. It will worsen existing inequities in access to IVF and has already introduced harmful and unjust delays in care to patients in Alabama.
Reproductive healthcare should not be subjected to legislative, judicial, or political interference. We must return these highly personal and uniquely individual decisions to their rightful owners: the individuals and couples seeking to build or expand their families.
Sigal Klipstein, MD, is board certified in obstetrics and gynecology and in reproductive endocrinology and infertility. She holds fellowships in infertility and medical ethics and is a Fellow of the American College of Obstetricians and Gynecologists. She practices at InVia Fertility Specialists in Chicago.
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