Alabama Supreme Court ruling: Frozen embryos, IVF future explained

Frozen embryos created during fertility treatments can be considered children under Alabama state law, the state’s Supreme Court ruled Friday.

The decision, issued in a pair of wrongful death cases brought by couples who had frozen embryos destroyed in an accident at a fertility clinic, could potentially leave clinics vulnerable to lawsuits and restrict access to treatment.

"This means the wrongful death of a minor act can be extended to all children despite what state they’re in – be it the embryonic state in the womb or born," Emma Waters, a research associate with the Heritage Association told LiveNOW from FOX.

While she said it will ultimately be up to the Alabama State Legislature to decide the details and breath of this law, it has raised concerns among many Americans about whether treating the embryo as a child – rather than a property – could have broader implications regarding the practices of in vitro fertilization, known as IVF.

How are embryos made?

According to the American College of Obstetricians and Gynecologists, the treatment often uses hormones to trigger ovulation so multiple eggs are produced, and a needle is used to remove them from the ovaries. 


A donated human embryo is seen through a microscope at the La Jolla IVF Clinic February 28, 2007 in La Jolla, California. (Credit: Sandy Huffaker/Getty Images)

The eggs can be fertilized by adding sperm to the eggs in a lab, or a single sperm can be injected into each egg.

"We culture that fertilized egg over a period of time — usually five to six days —- to create developmental stages called the blastocyst. And those are either transferred or stored for future use," Dr. Jason Griffith, a reproductive endocrinologist in Houston, told the Associated Press.

Griffith said that on Day 3 after fertilization, an embryo is anywhere from six to 10 cells. By Day 6, it’s between 100 and 300 cells.

RELATED: Alabama Supreme Court: Frozen embryos are 'children' under state law

"So you’re talking about something that’s still microscopic," he said, adding that a person contains more than a trillion cells.

Frozen embryos explained

Reproductive endocrinologists use two methods to freeze embryos: vitrification (flash freezing) and slow programmable freezing. Although the processes differ greatly, each works by cooling embryonic cells with various cryoprotectants ("antifreeze" fluids), according to the Women & Infants Fertility Center.

Frozen embryos can be used for future pregnancies, and the vast majority survive the thawing process.

Frozen embryos are stored in tanks containing liquid nitrogen at hospital labs or reproductive medicine centers. Griffith said they can also be kept in storage facilities that health care facilities contract with, especially when they are stored for many years. Frozen embryos can be safely preserved for a decade or more.

Dr. John Storment, a reproductive endocrinologist in Lafayette, Louisiana, said his state has a unique law that prohibits doctors from discarding any viable embryos that are still dividing — meaning they must be preserved and stored. So he and other doctors ship embryos out of state to a secure storage facility once a patient has finished using them for a particular IVF cycle.

"Whenever they’re ready for embryos again, they can just ship them back here," he said. "But we don’t keep them stored here."

In other states, he said, patients can choose to use them, discard them or donate them to other couples or for research.

What is IVF?

When and if you decide you are ready to have a baby, your frozen eggs are then thawed in a lab and the rest of the IVF process is completed. 

According to Mayo Clinic, IVF is often a treatment for infertility but is also used to prevent passing on genetic problems to a child.

The procedure is done by placing one or more of the fertilized eggs, called embryos, in a uterus, which is where babies develop. One full cycle of IVF takes about 2 to 3 weeks. Sometimes these steps are split into different parts and the process can take longer.

A person’s chances of having a healthy baby using IVF depend on many factors, including a person’s age and the cause of infertility. If more than one embryo is placed in the uterus, it can result in a pregnancy with more than one baby. This is called a multiple pregnancy.

What does the Alabama ruling mean for IVF?

The new ruling has caused many doctors nationwide to worry about possible national implications of the recent court decision.

It could "substantially restrict access to a very vital fertility treatment that has helped countless folks today expand their families," Griffith continued. "When you look at the percentage of pregnancies in the United States that result from in vitro fertilization, it’s around 2%."

It could also increase the cost of IVF for many families — although it’s unclear by how much — because of things like additional storage fees and liability costs, he said. One cycle of IVF, including all embryos transferred, now costs about $15,000 to $25,000, Griffith said.

Another possible ramification is that there will be fewer IVF providers, he said.

"We’ve got to safeguard access to this very valuable treatment," Griffith said.

Storment agreed that the Alabama decision could have a ripple effect across the entire country.

"It’s one of the bigger things to happen in reproductive law in the last decade," he said.

IVF providers pause its programs

On Thursday, a second IVF provider in Alabama paused parts of its care to patients. 

Alabama Fertility Services said in a statement that it "made the impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists."

The decision comes a day after the University of Alabama at Birmingham health system said in a statement that it was pausing IVF treatments so it could evaluate whether its patients or doctors could face criminal charges or punitive damages.

"We are contacting patients that will be affected today to find solutions for them and we are working as hard as we can to alert our legislators as to the far reaching negative impact of this ruling on the women of Alabama," Alabama Fertility said. "AFS will not close. We will continue to fight for our patients and the families of Alabama."

This story was reported from Los Angeles. The Associated Press contributed.