Alabama judge’s ‘fewer babies’ prediction rings true as major hospital system announces it is stopping IVF treatments over legal fears

As a lone dissenting justice on the Alabama Supreme Court predicted just days ago, hospitals in the state have stopped performing in vitro fertilization procedures out of fear of legal ramifications.

The University of Alabama at Birmingham health system made the announcement Wednesday in a statement announcing that egg fertilization, embryo development, and embryo implantation would be “paused.”

“We are saddened that this will impact our patients’ attempt to have a baby through I.V.F.,” the statement said, “but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for I.V.F. treatments.”

The statement further clarified that the health system’s Division of Reproductive Endocrinology and Infertility will continue performing egg retrievals from women seeking fertility treatment, but would not continue to the next step in the process which includes combining eggs with sperm for lab fertilization.

In vitro fertilization or “IVF” is a common procedure used to achieve pregnancy. It involves egg retrieval, then combining egg and sperm in a lab setting to create a fertilized embryo, then the transfer of that embryo into a person’s uterus. A recent study reports that the procedure accounts for about 1-2 percent — or about 4 million — births per year in the U.S.

The hospital’s decision follows a controversial first-of-its-kind ruling Friday in which Alabama’s top court ruled that frozen embryos in a lab count as “minor children” under the state’s wrongful death statute.

Three couples sued a fertility clinic in Mobile after a patient from a different department in the hospital wandered into the embryology lab and picked up embryos that were being cryopreserved. The embryos had been kept at subzero temperatures and when the patient picked them up with his bare hands, he was burned and then dropped the embryos on the floor.

The three couples, who called themselves “parents” of the embryos in their lawsuit, said that the clinic had been negligent in keeping the embryos in unlocked storage and alleged that when the patient “drop[ped] the cryopreserved embryonic human beings on the floor,” and as a result, their “embryonic children” “began to slowly die.”

Lawyers for the clinic argued that the plaintiffs were using the case to tap into a broader debate about abortion. Alabama has taken a hard line on abortion rights, and even announced an intent to criminally prosecute women who terminate pregnancies with medication.

>The clinic argued, and the trial judge agreed, that an embryo is clearly not a “person” for the purpose of wrongful death lawsuits, principally because Alabama’s homicide and wrongful death statutes define “person” as a human being that is at least “in utero.”

The majority of the all-Republican Alabama Supreme Court, however, sided with the plaintiffs and ruled that the Alabama Wrongful Death Act applies to “all unborn children, regardless of their location.” The ruling said that the destroyed embryos were ‘extrauterine children” or “unborn children who are located outside of a biological uterus at the time they are killed.”

Justice Jay Mitchell penned the majority decision for the court and reasoned that “everyone” involved in the lawsuit agreed that “life begins at fertilization and ends at death,” and said Alabama’s constitution required the court to include “unborn life” in all legal protections.

Justice Greg Cook, the only member of the court who went on record with a dissent, said the majority should not have independently adopted an updated interpretation of the state’s wrongful death law without further action from the legislature. Cook pointed to the unprecedented nature of the Alabama Supreme Court’s decision and said there was no way the original 1872 statute was ever meant to apply to frozen embryos.

Cook also predicted that “there will be fewer babies born” in Alabama, because “no rational medical provider” would continue to create or maintain frozen embryos knowing the risk of wrongful death liability for an accident.

Barbara Collura, President and CEO of RESOLVE: The National Infertility Association and leader of the organization’s Fight For Families Campaign, issued a statement Thursday that said the organization was heartbroken for Alabama families in the wake of the “impossible decision” that UAB was “forced to make.”

Collura said:

For those living with infertility and trying to build a family, a ‘normal’ IVF cycle is hard enough. There are hundreds, if not thousands, of people who are right now in the middle of a physically and emotionally challenging medical process to fulfill their dream of a baby. Would-be parents have invested their hearts, time and resources. Now, less than a week after the Alabama Supreme Court’s devastating ruling, Alabamians in the midst of seeking treatment have had their lives, their hopes and dreams crushed.

She continued:

This cruel ruling, and the subsequent decision by UAB’s health system, are horrifying signals of what’s to come across the country. We will continue to fight to maintain and increase access to care for the 1 in 6 adults nationwide who struggle with infertility.

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