Embryo loss is integral to IVF. Alabama’s ruling equating embryos with children jeopardizes its practice
An embryo is one of the earliest stages of development of a multicellular organism. But according to the Supreme Court of Alabama, it is a person, too — an unborn child, entitled to the same legal protections as any minor.
The court ruled on Feb. 16 that a fertility clinic patient who accidentally destroyed other patients’ frozen embryos could be liable in a wrongful death lawsuit, writing in its opinion that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location,” and that this includes “unborn children who are located outside of a biological uterus at the time they are killed.”
This has had immediate and profound consequences on the practice in vitro fertilization in the state, with many fertility clinics already deciding to interrupt their services for fear of legal repercussions, including the University of Alabama at Birmingham, which has paused its IVF treatments, as has Alabama Fertility Services.
But the implications may reach beyond Alabama’s border: 11 other states have fetal personhood laws, and in at least four of them — Alabama, Mississippi, Oklahoma, and South Carolina — such laws have already been used to prosecute pregnant women for child endangerment and neglect. Like Alabama, these states could interpret their wrongful death laws as applying to embryos, putting IVF clinics in legally vulnerable situations.
“I’m sure there are a lot of lawyers across the country that are assessing the risk profile for their IVF provider clients, and with good reasons,” said Giudith Daar, a specialist in reproductive health law and dean at Chase City College of Law at Northern Kentucky University. “In the route to parenthood through assisted conception, embryo loss is a big part of that journey — it is a byproduct of IVF. So if the embryo loss is now associated with civil or criminal penalties, it’s understandable that providers would not want to move forward.”
In many ways, IVF is a game of numbers. Only about a quarter of fertilized eggs result in an embryo, and the chances an implanted embryo progresses into a viable pregnancy can be as low as 10% depending on a woman’s age. The more the fertilized eggs, the more embryos, and the greater the chance of a pregnancy. While embryos can be transferred without freezing, cryopreservation helps avoid transferring multiple embryos at once and allows for delayed transfer when, for instance, someone is undergoing medical treatments such as chemotherapy.
This means frozen embryos, as well as embryos that end up being lost because they aren’t implanted, are necessary parts of IVF. But based on the Alabama ruling, handling them could expose IVF clinic staff to criminal or civil charges. The decision doesn’t lay out scenarios in which someone may be prosecuted, but practitioners worry that any potential damage from the routine handling of frozen embryos could result in legal issues. And the ruling also raises risks for institutions that use embryos for stem cell research.
Estimates on how many frozen embryos exist in the U.S. vary significantly. According to the Society of Assisted Reproductive Technology, 400,000 embryos have been frozen since the 1970s. The Health and Human Services department estimates 600,000, while the National Embryo Donation Centers puts the figure close to 1 million.
“If the policy outcomes mandated under this decision stand, the consequences will be profound. Modern fertility care will be unavailable to the people of Alabama […]. Young physicians will choose not to come to the state for training or to begin their practice. Existing clinics will be forced to choose between providing sub-optimal patient care or shutting their doors,” wrote Paula Amato, president of the American Society for Reproductive Medicine, in a statement.
This is the first time any federal or state U.S. court has adopted such a broad definition of personhood, though it’s not the first time such a definition threatened IVF practice. In May 2022, the Louisiana House of Representatives proposed a bill that would have considered an embryo a person, though it didn’t move forward after substantial opposition from IVF doctors and practices.
“This is the logical end to the legal personhood movement, which we knew was going to be the next frontier after Roe versus Wade was overruled,” said Seema Mohapatra, a professor of Health Law at Southern Methodist University’s Dedman School of Law.
Some anti-abortion groups, however, celebrated the decision.
“The IVF industry is poorly regulated and too rarely monitored, with numerous media stories illustrating problems. Even this case began with an allegedly sloppy operation that somehow allowed a client access to a sensitive storage area where embryos were accidentally destroyed, according to media reports,” said Kristi Hamrick, vice president of media and policy at Students for Life, an anti-abortion organization, in an email to STAT.
“We don’t focus on IVF policy per se, but we believe that a conversation on this topic is overdue given the life and death stakes,” she added, characterizing the IVF industry as one that “turns surrogates and children into commodities, and that has as a central premise, the goal of creating disposable children.”
Experts noted that several couples moved their embryos to states with pro-choice legislatures in the wake of the Dobbs decision, driven by fear of the impact of abortion bans and personhood laws. And, just as with abortion bans, it may be the fear of legal consequences rather than actual prosecution that stops practices from offering fertility treatment.
“Medical providers tend, on the whole, to be fairly conservative in terms of financial and legal risks,” said Jessie Hill, a law professor at Case Western Reserve University. “Uncertainty in and of itself is a legal risk — you don’t need to wait around for a court to rule against you.”
For people looking to expand their families through IVF who live in states that either have or could adopt personhood definitions akin to Alabama’s, the impact of this decision could be devastating. The added uncertainty could lead providers who decide to remain in business to invest heavily in insurance protection, said Northern Kentucky University’s Daar, a cost that is likely to be passed down onto the patients, making IVF less affordable. Transporting embryos to states that don’t have fetal personhood laws would be an additional cost.
One way to limit IVF costs is to maximize the chances of success by creating as many embryos as possible from each egg retrieval. This typically means freezing embryos and running genetic testing that selects the most viable ones to limit the number of cycles. But taking this approach might now be legally risky, says Southern Methodist University’s Mohapatra. There are also situation in which it is nearly impossible to create and transfer one embryo at a time, which means treating the loss of an embryo as a wrongful death would all but eliminate the possibility to conceive for some people.
“It’s unfortunate because when we think about reproductive justice, it’s not just the idea that you should have a right not to have a child, but also the right to have a child,” she said.
Experts note that the Alabama decision eliminates a longstanding contradiction in the arguments of anti-abortion groups in favor of the principle of personhood, irrespective of how unpopular that principle may be among voters or businesses.
“Anti-abortion groups often seem to be OK with IVF… even though they know that that process almost inevitably results in destruction of embryos,” said Hill. “[Pro-choice groups] have always been able to point to this tension and say, ‘You don’t really think it’s a person from conception because you’re OK with IVF.’”
But one way in which the battle for IVF may differ from that for abortion rights is financial. The IVF market is estimated at around $5 billion and growing at 7% yearly, according to market insight firm Allied Market Research.
“This is big business,” said Mohapatra. “And I think that, in some ways, having those business interests speak up and lobby might drive some public opinion, but also judicial and legislative opinion.”
What is your favorite Alabama food brand? Chefs give their picks
In Alabama, we are blessed with a bounty of food brands that are famous not just in our state but nationwide.
From Conecuh Sausage to Golden Eagle Syrup, Wickles Pickles to Sister Schubert’s.
In the latest installment of our “Ask an Alabama Chef” series, we put the question to chefs, pitmasters and restaurateurs from around the state:
What is your favorite Alabama food brand, and how do you use it in some of your dishes?
Continue reading below to find out what they said.
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Golden Flake potato chips
Sadly, Golden Flake potato chips aren’t made in Alabama anymore since new owner Utz Quality Foods bought the brand and moved production to Hanover, Pa., last year.
But the beloved Alabama brand — which the late, legendary Paul “Bear” Bryant made famous on his iconic TV show — lives on.
And Golden Flake chips are still a favorite of pitmaster Van Sykes, who sells them with his barbecue and burgers at Bob Sykes Bar-B-Q in Bessemer.
“For over 60 years, I’ve merchandised Golden Flake chips,” Skyes says. “That’s one Alabama product I’ve sold a lot of. There’s just something about the Golden Flake brand.
“My daddy used to tell me that a perfect meal is a barbecue pork sandwich, a bag of Golden Flake Chips and a glass of tea,” Sykes adds. “That was the preferred side item back in the day. It sold like french fries.”
Closing of Golden Flake factory in Birmingham leaves warm memories of hot chips
Chef Rob McDaniel of Helen in Birmingham — who is a five-time James Beard Award semifinalist for Best Chef: South — is a loyal fan of Alabama’s own Wickles Pickles.
And not just because they are “wickedly delicious,” as the slogan goes.
“Wickles is my favorite Alabama-made product.,” McDaniel says. “Not only are they amazing, but the owners are also family. So call it biased, if you will.”
(Earlier this year, the owners of Dadeville-based Wickles Pickles announced they have sold to the Fenwick Food Group, an operating platform for food businesses that include Alabama’s Moore’s Marinades. Its headquarters will be in Birmingham, the company said in a news release.)
15 things you might not know about Wickles Pickles
Bill-E’s Small Batch Bacon
Brody Olive, the head chef at Voyagers in Orange Beach and the reigning Great American Seafood Cook-Off champion, is loyal to a fellow Baldwin County business, Bill-E’s Small Batch Bacon in Fairhope.
Olive not only uses Bill-E’s bacon in some of his dishes at Voyagers but also at the other restaurants on the Perdido Beach Resort property, he says.
“My favorite thing, when we get our first batch of real tomatoes, it’s like everything stops in the kitchen and we make one super BLT out of like a three-foot chunk of ciabatta,” Olive says.
“Our oysters Rockefeller has Billy-E’s bacon in it, and we do a blue mac and cheese that it’s incorporated in,” he adds.
Olive has been supporting Bill-E’s Small Batch Bacon since founder Bill E. Stitt started marketing his “serenaded by songwriters” bacon about a decade ago.
“When he first started in the market, (ours) was one of his first restaurants to pick up his products,” Olive says. “And it’s been just as consistent today as it has been since the first samples I ever got from him.”
Olive buys Bill-E’s bacon straight from the source, he adds. Every week, someone from his restaurant makes the near-hour drive to Fairhope to get it.
“Different guys will go pick it up, so they have an opportunity to see what’s going on over there,” he says. “It’s a very pretty drive as well.”
Bacon is Bill E. Stitt’s business, and business is good
Golden Eagle Syrup
Golden Eagle Syrup — a family-owned brand founded in 1928 and made in a factory in downtown Fayette for the past 80 years — is a breakfast staple in many Alabama homes.
It’s also a favorite of Linda Smelley, the longtime proprietor of the Historic Waysider Restaurant in Tuscaloosa.
“We use it for our pecan pies,” Smelley says, “and then, in general, people want it for their biscuits.”
For the recipe to that famous Golden Eagle Syrup pecan pie, as well as other recipes, go here.
Golden Eagle Syrup is the ‘Pride of Alabama’
Alecia’s Tomato Chutney
Ashley McMakin, the founder and CEO of Ashley Mac’s Kitchen in Birmingham, is a fan of Alecia’s Tomato Chutney from Alecia’s Specialty Foods in Leeds.
McMakin says she was inspired by Birmingham chef Frank Stitt, who uses Alecia’s Tomato Chutney on a pizza he serves at Bottega Café, the recipe for which he shared in his Bottega Favorita cookbook.
“We’ll use it at home on homemade pizza, or I make a little aioli with it and put it on pork or fish,” McMakin says. “My family all likes it, too, so it makes me like it even more since everybody agrees on it.”
Alecia’s Tomato Chutney is available at Alabama Goods, New York Butcher Shoppe and other specialty markets around the state.
Not surprisingly, one of Alabama’s most famous food brands, Evergreen’s Conecuh Sausage, is the favorite of at least three of our chefs.
Brian Mooney of Tre Luna Bar & Kitchen in Hoover says he uses Conecuh Sausage in an appetizer his Tre Luna catering company serves.
“At the catering company, we do this mini-homemade cheese biscuit with Conecuh Sausage and it’s one of our top-selling hors d’oeuvres,” Mooney says. “People go crazy for it.”
Crystal Peterson of Yo’ Mama’s restaurant in Birmingham says her mother, Denise Peterson, uses Conecuh Sausage to enhance the shrimp and grits they serve at Yo’ Mama’s.
“The seasoning in the sausage is so on-point you don’t have to add anything to it,” she says. “It adds flavor to the dish.”
Meanwhile, world champion Alabama pitmaster Chris Lilly of Big Bob Gibson Bar-B-Q in Decatur says he uses Conecuh Sausage more than any other Alabama-made food brand.
“It’s a great ingredient in barbecue paella, barbecue gumbo, grilled pizza, or in its simplest form, with a heavy char and stone-ground mustard,” he says.
“A little-known fact,” Lilly adds. “I won the World’s Best Sausage at the American Royal (World Series of Barbecue) using Conecuh.”
14 tasty Conecuh Sausage dishes at Alabama restaurants
NOTE: Our “Ask an Alabama Chef” series appears periodically on AL.com. To suggest a question or recommend a chef, email email@example.com.
Nikki Haley says frozen embryos are babies, in response to Alabama ruling
Republican presidential candidate’s comments seen as endorsement of a controversial ruling by Alabama’s Supreme Court.
Republican presidential candidate Nikki Haley says she believes frozen embryos created through in vitro fertilisation (IVF) were babies, in comments seen as an endorsement of a controversial ruling by the Alabama Supreme Court.
Haley addressed the issue in TV interviews on Wednesday, days after Alabama’s top court said frozen embryos in test tubes should be considered children.
The ruling has rattled doctors and patients in reproductive medicine and caused the University of Alabama at Birmingham (UAB) to temporarily pause IVF treatments.
“Embryos, to me, are babies,” Haley told NBC News. “When you talk about an embryo, you are talking about, to me, that’s a life. And so I do see where that’s coming from when they talk about that.”
The former South Carolina governor added that she had her son after using artificial insemination, a different procedure which does not involve embryos in a lab.
Asked in a CNN interview later on Wednesday about the remarks, she said: “I didn’t say that I agreed with the Alabama ruling.” She later added, “Our goal is to always do what the parents want with their embryo. It is theirs.”
Haley is the last major 2024 Republican presidential challenger to frontrunner Donald Trump.
The two will face off a third time on Saturday in her home state of South Carolina, with Haley again trailing in opinion polls but refusing to drop out.
Trump has not publicly mentioned the Alabama ruling.
The southern state’s top court issued its controversial decision on Friday in a pair of wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic.
The embryos, stored in a cryogenic nursery, were destroyed by a patient who wandered into the nursery and accidentally dropped several of them on the floor.
Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location”.
“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in Friday’s majority ruling by the all-Republican court.
The ruling was greeted by widespread shock in Alabama, with patients confused about whether to proceed with IVF and others wondering whether to move their embryos, according to news reports.
The University of Alabama at Birmingham has meanwhile paused IVF treatments due to fear of prosecution and lawsuits, according to a hospital representative.
“We are saddened that this will impact our patients’ attempt to have a baby through IVF, 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 statement said.
The White House said the ruling would create chaos for American families.
“This decision is outrageous – and it is already robbing women of the freedom to decide when and how to build a family,” Vice President Kamala Harris said in a post on X.
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