The Alabama Supreme Court has ruled that frozen embryos are people, arguing that the state’s Wrongful Death of a Minor Act applies to the destruction even of “extrauterine children.”
The ruling has severe implications for families hoping to conceive using in vitro fertilization (IVF), a method widely used by infertile and queer couples. In IVF, more embryos are created than implanted, with the remaining embryos stored, donated, or destroyed. It is unclear whether frozen embryos in Alabama can be legally destroyed or donated. It may even create a legal requirement that all embryos must be implanted, which would reduce the chances of an IVF treatment being successful. If the decision stands, the high burden of managing frozen embryos would likely make IVF treatments in Alabama considerably more inaccessible.
“As a trans person, I’ve definitely thought about if I want to potentially freeze eggs,” said Zephyr Scalzetti, a senior digital organizer with Alabama Values Progress. “It’s not something that was in the cards over the next few years, but it was definitely something on my mind, and now that’s a hard no. You don’t even want to chance it.”
In addition to reducing options for having children, the decision in Alabama could affect parent health and safety, as many parents use IVF to test embryos for genetic abnormalities that increase the risk of miscarriage and stillbirth. It could also make an already grueling and expensive procedure even more so by forcing parents to go out of state for treatments.
“When you look at IVF, and you’re now limiting options … you are also narrowing the options for people to have children,” Scalzetti said. “It’s already an expensive procedure, but to add going-out-of-state costs to that? That’s astronomical, so that’s also going to keep a lot of people away from this.”
Three health care facilities—the University of Alabama Birmingham hospital system, Alabama Fertility Specialists, and the Center for Reproductive Medicine at Mobile Infirmary—paused IVF treatments as they assess whether their doctors and patients could face criminal charges for administering or receiving IVF. Cryoport, a major embryo shipping company, announced it would pause doing business in Alabama.
The majority of people who use IVF are straight couples, but queer people are likely to be disproportionately affected if IVF treatments become inaccessible. With fewer options for having children than straight couples, queer people often depend on IVF treatments if they want to raise a family.
“We work with queer and trans folks just as often as anyone else, and I was really alarmed at the possibility that they won’t be able to parent,” said Jenice Fountain, executive director of the Yellowhammer Fund, a reproductive justice organization in Alabama. “The state already has a lot of limitations on folks’ ability to parent as it is or their ability to choose when and how. This is just going to double down on that, which is alarming.”
Queer people across the country face discrimination when trying to have children. Many insurance companies that cover IVF treatment for straight couples do not cover it for same-sex couples. Many states, including Alabama, allow adoption agencies to discriminate against LGBTQIA+ couples in adoption placement.
“In Alabama, we have a lot of foster care systems and adoption systems that are very religious, and because of that [LGBTQIA+] families are less likely to be able to adopt, and they are less likely to get placements from foster care,” said Robin Marty, executive director of the West Alabama Women’s Center. “They’re a lot less likely to create families in any way unless they are able to have access to these treatments.”
The new ruling could also have a disproportionate impact on Black and Latinx people, who are more likely to be infertile than white women. Fountain is also concerned that a decrease in available options for people to reproduce could increase demand for adoption and lead to a more aggressive child welfare policy.
“I’m really alarmed by the possibility of white women weaponizing their infertility against Black folks and systems like [the Alabama Department of Human Resources] and Child Protective Services having to double down on separating Black babies from their families to assist folks becoming parents,” Fountain said.
The lawsuit leading to the ruling was brought about by three couples who had sought IVF at the Center for Reproductive Medicine in Mobile. In 2020, an unauthorized hospital patient entered the area where the embryos were stored, picked them up, dropped them, and destroyed them. The couples sued, with one of the legal theories used to justify their claims being that an embryo is a child with protection under the Wrongful Death of a Minor Act. The judges sided with the couples on the basis that an embryo is a child entitled to legal protection.
The decision partially relied on an anti-abortion constitutional amendment approved by Alabama voters in 2018 supporting “the sanctity of unborn life and the rights of unborn children, including the right to life.” The “fetal personhood” amendment made clear that Alabama does not support abortion rights and cleared the way for Alabama to ban abortion once Roe v. Wade was overturned.
After the ruling, many Republican elected officials in Alabama distanced themselves from the decision. Republican State Sen. Tim Melson said he would introduce legislation to allow IVF treatments to continue, which Gov. Kay Ivey said she would support. Alabama Attorney General Steve Marshall said the state would not prosecute families or providers for using IVF. The National Republican Senatorial Committee announced in a memo that Republican candidates should not oppose IVF.
“It is imperative that our candidates align with the public’s overwhelming support for IVF and fertility treatments,” said Jason Thielman, the executive director of the NRSC.
But reproductive health care advocates in Alabama said the fetal personhood definition is the real problem. Republican efforts to allow the state to interfere in reproductive choices is what allowed the most recent ruling to be possible.
“We view it as another attempt of the state to control the bodies of the people that live here,” said Lindsey Mullen, co-executive director of the Alabama Cohosh Collaborative, a reproductive justice organization in Madison County, Alabama. “In the way that the legislature has so quickly turned on this, it exposes the absurdity of the rhetoric that was used to push the extreme abortion bans that are in place in our state.”
Reproductive justice organizations in Alabama are working hard to serve the state’s LGBTQIA+ families. In October 2023, Cohosh Collaborative sent out a survey to LGBTQIA+ individuals looking to have children in Alabama to inform the organization’s efforts to create a support group and provide other resources for queer families. Alabama Values Progress is working to bring progressive organizations across the state together to develop an advocacy strategy for holistically addressing bodily autonomy and reproductive justice issues with a focus on marginalized communities. Advocates emphasized the urgent need to organize.
“They are using every trick to oppress trans and queer people, to suppress LGBTQ people,” Scalzetti said. “When you look at that intersecting with bodily autonomy, it paints a pretty scary picture, but it’s been one that we’ve been steadily marching to for years.”
