Pauses on embryo transfers out of Alabama leave IVF patients few options

Some fertility clinics and shipping services plan to hold off on sending frozen embryos from Alabama to other states as they weigh the legal implications of an Alabama court ruling that says embryos created through in vitro fertilization are children.

Many doctors and patients are confused about which elements of fertility treatment are restricted, following the Alabama Supreme Court decision last week, and at least three Alabama providers have paused IVF services. Some IVF patients have considered moving their embryos out of the state to continue the process elsewhere, only to learn that the option isn’t available to them right now.

RESOLVE: The National Infertility Association announced Friday that nationwide embryo shipping services have indicated that they will stop transporting embryos to and from Alabama.

“This slight window of hope for Alabamans currently undergoing IVF to continue their family-building treatment in other states just slammed shut,” RESOLVE CEO Barbara Collura said in a statement.

At least two IVF providers in Alabama told NBC News they have paused shipping of embryos, as well.

The University of Alabama at Birmingham, which suspended IVF services this week, said Thursday that it is not sending embryos to new locations for now.

“We understand some patients wish to transport their embryos to another facility,” UAB said in a statement. “Companies that transport embryos are also assessing the risks associated with the Alabama Supreme Court ruling, and we are working to identify a company that is able and willing as soon as possible. It is our goal to help patients who are interested in this option do so safely, but — at this time — there are no options available.”

Meghan Cole, a patient at Alabama Fertility in Birmingham, was expecting her embryo to be implanted in a surrogate Friday (Cole has a blood disorder that prevents her from safely carrying a pregnancy). But the appointment was canceled Wednesday night after the clinic decided to pause IVF services.

She inquired about transferring her embryos to an out-of-state facility, but a doctor told her that the practice was worried it would be liable for any potential damage to the embryos during transit, she said.

“Now, even if I wanted to get them out of the state and do a transfer in another state or where my surrogate lives, I can’t,” Cole said. “I’m just kind of stuck until something changes down here, which who knows how long that’s going to take?”

Alabama Fertility did not respond to multiple requests for comment.

Dr. Brett Davenport, a reproductive endocrinologist at Fertility Institute of North Alabama, said that even though his practice is continuing IVF services, it isn’t shipping embryos, either.

“I’m not actively destroying embryos, nor am I transporting embryos out of state, just because I think that this is very possibly going to be resolved in about a month,” he said.

The Alabama court found that people can be held legally responsible for the destruction of embryos under the state’s Wrongful Death Act, which says that an unjustified or negligent act that leads to someone’s death is a civil offense. So providers of IVF services and embryo transport now fear legal repercussions if embryos are discarded — a common part of the IVF process, since some embryos can have genetic abnormalities or may no longer be needed.

However, the Alabama Supreme Court’s Feb. 16 ruling applied to a unique circumstance: Three couples sued a fertility clinic in Mobile, Alabama, after a person wandered into an unlocked storage area and dropped frozen embryos on the floor. The court ruled that because an embryo is considered a person, the clinic’s failure to secure that storage area violated the state’s Wrongful Death Act.

Legal experts are hesitant to speculate on the broader implications.

“Parents of an embryo that is destroyed can sue the person who destroyed the embryo for wrongful death — that’s all this decision said. We’ll have to wait and see what may play out later on in the courts if there are subsequent lawsuits seeking to weaponize this opinion to ban IVF,” said Gail Deady, senior staff attorney at the Center for Reproductive Rights.

On Friday, Katherine Robertson, chief counsel for Alabama Attorney General Steven Marshall, said her office “has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers.”

The Alabama Legislature could also act to protect IVF. Five Democrats introduced a bill in the Alabama House of Representatives on Thursday that stipulates that embryos outside of a uterus are neither unborn children nor human beings under state law. Republican state Sen. Tim Melson also announced Thursday that he plans to introduce a similar bill clarifying that embryos aren’t human lives until they’re implanted in the uterus.

It’s not clear when fertility clinics might feel comfortable enough to resume normal operations — or whether patients who intended to discard embryos will have to continue paying storage fees in the interim. Storing frozen embryos can cost $350 to $1,000 per year.

Cole said she’s sympathetic to her clinic’s position, but she’s also worried about the potential for spiraling implications of the Alabama ruling.

“The clinic is afraid to even release the embryos to us for transfer to another state. I’m like, ‘Well, theoretically, aren’t you kidnapping my children?’” she said. “How far are we taking this? Can I claim them as dependents on my tax return?”

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