Couples race to move frozen embryos out of Alabama after court defines them as children

Move could see fertility prices soar and clinics shut down
Move could see fertility prices soar and clinics shut down - MAURICIO LIMA/AFP

Couples are racing to transfer their frozen embryos out of Alabama after a state court defined them as living children.

Alabama’s Supreme Court last Friday enacted the toughest anti-abortion measure in America, classifying frozen embryos as people. Anyone who destroys one can now be held liable under the Wrongful Death of a Minor Act.

On Tuesday, the White House condemned the ruling as an example of the “chaos” that has followed the overturning of Roe vs Wade.

The move is expected to have huge ramifications for the fertility industry in the state, which could see prices soar and clinics shut down.

It could also embolden other states, likely those with strict abortion laws, to follow suit.

Karine Jean-Pierre, a White House press secretary, said: “This is exactly the type of chaos that we expected when the Supreme Court overturned Roe v Wade and paved the way for politicians to dictate some of the most personal decisions families can make.”

Meghan Cole, a fertility patient from Alabama, said she is scrambling to have her frozen embryos transferred to an “IVF friendly” state such as New York or New Jersey.

The lawyer, 31, was diagnosed with a rare blood disease as a teenager which makes it unsafe for her to carry a child.

The White House has condemned the ruling as post Roe vs Wade ‘chaos’
The White House has condemned the ruling as post Roe vs Wade ‘chaos’ - Kim Chandler/AP

She and her husband have been through two rounds of IVF, both of which resulted in nonviable embryos being discarded.

On Friday one embryo is being transferred to her surrogate, a procedure she feared would be cancelled because the clinic would be “paralysed with fear”.

Mrs Cole said she was “angry” when she first read the Alabama Supreme Court ruling, which she saw as another example of “overreach” by the court.

“I’m scared of what I’m supposed to be doing with the embryos that are going to remain frozen”, she told The Telegraph.

“We’re likely going to move them out of state at some point. You know, hopefully, this transfer is successful, and that we won’t have to use another one in the immediate future.

“But, you know, our plan is to move them out of state to a more IVF friendly state.”

“It just didn’t cross my mind that, you know, I would ever, potentially be held liable for discarding embryos in the normal course. I mean, there. It’s a cluster of cells… they can’t live outside of the freezer... So yeah, this was kind of blindsiding.”

The ruling stems from two lawsuits filed by three sets of parents whose embryos were allegedly destroyed in December 2020 when a patient removed them from the cryogenic nursery and dropped them on the floor.

The parents sued for wrongful death but a trial court dismissed their claims, finding the embryos did not fit the description of a “person” or “child”.

In February the state Supreme Court reversed the ruling and said the embryos are “children” and are covered by the state’s Wrongful Death of a Minor law.

Eric Wrubel, the co-chairman of the Fertility Law Group and Warshaw Burstein, said the ruling is unsurprising given the Roe v Wade decision which overturned the right to abortion.

He said it will have huge ramifications for the fertility industry if an embryo storage facility could be held liable for hundreds of deaths if it loses power.

“According to Alabama, you’ve just committed 1,500 murders – the owners are now going to be guilty of 1,500 murders? That’s insane,” he said.

Mr Wrubel said he will advise his clients not to use a fertility clinic in states such as Alabama.

“I do think that you’re going to see safe havens for IVF,” he told The Telegraph.

It also throws into question the outcome of divorce settlements, which often state that if a couple can’t decide who gets the embryos they will be destroyed. “It’s crazy,” he said.

“We’ve come so far in terms of helping families and couples have children and have children in a safe way, in a healthy way, having healthy children, and then we just turn back the clock and say, ‘no, let’s not do that.’”

An Alabama university temporarily stopped IVF treatments on Wednesday after the court ruling.

The University of Alabama at Birmingham (UAB) said it had paused IVF treatments “as it evaluates the Alabama Supreme Court’s decision that a cryopreserved embryo is a human being”.

“We are saddened that this will impact our patients’ attempt to have a baby through IVF,” the university said in a statement.

“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 IVF treatments.”

The university stressed that it is only IVF treatment that is paused and “everything through egg retrieval remains in place”.