After the Alabama Supreme Court ruled that embryos resulting from in vitro fertilization (IVF) should be considered “children” under state law, family-building experts and advocates take action, outlining the importance of access to fertility care nationwide. 

In this article:

On February 16, 2024, the Alabama Supreme Court handed down a decision on LePage v Mobile Infirmary Clinic which ruled that frozen embryos and fertilized eggs are “children” under state law and subject to legislation dealing with the wrongful death of a minor, stating the law “applies to all unborn children, regardless of their location.”

LePage v Mobile Infirmary Clinic involves a specific case of accidental loss of embryos in a laboratory. Up until now, this would have been considered negligence, depending on what happened to the embryos. (Failed liquid nitrogen storage tanks are one example of loss of embryos that has resulted in civil liability). 

However, lawyers have applied a law from 1872 that allows couples to sue for wrongful death of a minor child. The Alabama Supreme Court has now stated that embryos outside of the uterus are the legal equivalent of a child, and anything that can happen to an embryo can be considered the wrongful death of a minor – with legal consequences.

The Fertility Community Responds

The fertility community’s outrage and mobilization in the wake of this misguided decision from the Alabama Supreme Court has been swift and powerful. Advocates from across the country have shared their personal stories and professional expertise in an effort to educate and inform about the far-reaching impact of the ruling. 

“The choice to build a family is a fundamental right for all Americans, regardless of where they live,” said Dr. Paula Amato, President of the American Society for Reproductive Medicine. “We cannot, therefore, allow this dangerous precedent of judicial overreach with national implications to go unchecked.”

On March 7, 2024, Alabama Governor Kay Ivey signed SB159 into law, which will provide protections for IVF to resume in the state after the Alabama Supreme Court ruling forced fertility clinics to pause IVF treatments.

While many are expressing a sense of relief, the legislation does not address the underlying issue of the status of embryos as part of the IVF process – threatening the long-term standard of care for IVF patients, said Barbara Collura, President and CEO of RESOLVE: The National Infertility Association and leader of the organization’s Fight For Families Campaign. “There is more work to be done,” she added.

On March 1, 2024, I traveled to Hartford, Connecticut with Illume Fertility’s Dr. Mark Leondires and Dr. Spencer Richlin in my capacity as Illume’s Patient Advocate.

Our goal? To support U.S. Sen. Richard Blumenthal (D-CT) and other reproductive rights advocates (GLAD, Planned Parenthood, Resolve New England, and more) at a press conference demanding federal protections for infertility treatment in the wake of the recent Alabama Supreme Court ruling.

Senator Blumenthal is calling on Congress to quickly pass the Access to Family Building Act, a bill introduced by Senator Tammy Duckworth (D-IL) which would override state limits and establish a statutory right to access in vitro fertilization (IVF) nationwide.

The Access to Family Building Act is endorsed by the American Society for Reproductive Medicine (ASRM) and RESOLVE: The National Infertility Association, as well as Resolve New England and others.

Note: Illume Fertility proudly supports RESOLVE’s mission year-round, and our team members are active participants in the organization’s annual Advocacy Day and National Infertility Awareness Week (NIAW) campaigns. In 2023, I was selected to serve as co-chair for Advocacy Day, a role I was proud to accept.

Community Acknowledgments

Illume Fertility gratefully recognizes Resolve New England, Patience Crozier of GLAD, Gretchen Raffa of Planned Parenthood, Katherine Kraschel of Northeastern University, and Liz Gustafson of Reproductive Equity Now for their ongoing work to expand access to family-building care in New England, and for including us in these recent efforts.

A Personal & Professional Mission

“As leaders in the fertility field, it is our responsibility to address misinformation, share our medical and scientific knowledge, and advocate for access to family-building care for each and every person who wants to have a child,” said Dr. Mark Leondires, Illume’s Founder and Medical Director.

“1 in 6 people worldwide suffer from infertility, and access to treatment options like IVF is essential. My own family would not exist without IVF – for me and the millions of other Americans that need access to fertility care, this is personal,” Dr. Leondires added.

On March 5, 2024, Dr. Mark Leondires expressed his support for House Bill 5378 before the committee, which provides equal access to health insurance coverage for infertility treatments no matter gender, sexual orientation, or marital status.

“In the majority of the cases that we see in the LGBTQ+ community, people do not have coverage, and they are marginalized,” he said. 

News12 Connecticut also interviewed Dr. Spencer Richlin to get his perspective on the legislation. With most LGBTQ+ patients, as well as single individuals, he said he often has to deliver bad news: “We have to tell them that their insurance doesn’t cover [the care they need],” he said. “And that’s heartbreaking.”

“One of our single moms by choice – she comes in, she’s been paying her insurance, and what she needs is fertility treatment with donor sperm,” said Dr. Richlin. “But since she hasn’t been ‘exposed’ to sperm, her insurance company – that she has been paying money for – won’t help her by providing the same proven treatment protocols that someone in a heterosexual relationship would have access to.”

The reason? These patients don’t qualify as ‘infertile’ under state law (despite the fact that they physically cannot conceive on their own without fertility treatment).

Unfortunately, stories like these are all too common.

What we need to keep in mind is that these two groups of people are already accounted for in the cost analysis. In other words, allowing the LGBTQIA+ and single person population to access fertility benefits will not add additional costs. They are already factored in to the overall cost structure, yet they are both excluded from accessing family-building care.

When the majority of LGBTQ+ patients and single parents to be lack coverage for family building, it is unfortunately normal for patients to stop reproductive health care due to the financial barriers.

Bills like H.B. 5378 could provide access to critical insurance benefits and allow LGBTQ+ and single patients to be able to complete fertility treatment, giving them the life-changing opportunity to grow their family.

With fertility treatments like intrauterine insemination (IUI) ranging anywhere from $5,000 to $20,000 out of pocket, and IVF from $12,000 to $25,000 (with surrogacy reaching upwards of $150,000), pursuing family building without insurance coverage simply isn’t an option for most people.

The more inclusive definition of ‘infertility’ contained in H.B. 5378 would also bring Connecticut in line with the American Society for Reproductive Medicine (ASRM), which updated its definition of infertility to include “the need for medical intervention, including, but not limited to, the use of donor gametes or donor embryos in order to achieve a successful pregnancy either as an individual or with a partner.”

“Nobody’s asking for coverage for additional services, just the same services,” Dr. Leondires said in his testimony. “Why should they be denied the ability to have a child if they are paying into the same taxes and health care as everybody else in the state?”

As a member of the LGBTQ+ community himself, Dr. Leondires faced this same reality when it was time to start his own family. “The desire to be a parent is independent of sexuality or gender (or) gender identification,” he said. “It’s just something that’s kind of innate within our humanity.”

• Roughly 2% of children in the United States are born using in vitro fertilization (IVF), according to the Centers for Disease Control and Prevention.
• During the IVF process, multiple eggs are retrieved and fertilized in a lab. Any eggs that successfully fertilize are closely monitored in the lab until they reach the blastocyst stage of development, then transferred back to the patient’s uterus a few days later or cryopreserved for a future frozen embryo transfer. 
• As of 2020, there were at least 600,000 embryos in storage in the U.S. according to the CDC, although other estimates are as high as 1 million.

An overwhelming majority of Americans said they believe in IVF should be legal, according to a new poll by CBS News/YouGov, which found that 86 percent of Americans support keeping IVF legal.

This CBS News/YouGov poll follows a separate survey from Axios/Ipsos, which found about 66 percent of Americans saying they disagree with the Alabama ruling, including 45 percent who said they strongly oppose it, and 21 percent who somewhat oppose it.

The White House condemned the decision as “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.”

“Human reproduction is an inherently inefficient process,” explained Dr. Spencer Richlin, Illume Fertility’s Surgical Director and Partner. “While IVF offers patients the best chance at a healthy pregnancy, the number of eggs retrieved rarely results in an equal number of viable embryos.”

For this reason, said Dr. Richlin, it is critical to fertilize enough eggs to account for the natural attrition rate that occurs throughout the phases of in vitro fertilization. 

“Everyone needs to understand there are many complicated factors that go into individualizing a person’s pathway to parenthood using IVF,” added Dr. Mark Leondires, Illume Fertility’s Founder and Medical Director. “The majority of embryos transferred do NOT yield even a positive pregnancy test result, let alone a successful pregnancy.”

In vitro fertilization (IVF) is a complex and multi-step assisted reproductive technology designed to help individuals and couples conceive. While each treatment cycle is unique, the IVF process generally involves the following steps:

1. Ovarian Stimulation: The patient takes fertility medications for several days to stimulate the ovaries to produce multiple eggs (rather than the single egg typically produced each month). This process is monitored through ultrasound and blood tests.

2. Egg Retrieval: Once the eggs are mature, a minor surgical procedure called an egg retrieval is performed under sedation. Using an ultrasound-guided needle through the vaginal wall, eggs are gently aspirated (extracted) from the follicles of the ovaries.

3. Sperm Collection: Often simultaneously, a sperm sample is collected from the male partner (or obtained from a sperm donor). The sperm is prepared for fertilization by washing and concentrating the healthiest sperm cells. In some cases, previously frozen sperm will be thawed and used. 

4. Fertilization: The eggs and sperm are combined in a laboratory dish to encourage fertilization. Sometimes, a single sperm is injected directly into an egg to improve chances of fertilization (a process known as intracytoplasmic sperm injection, or ICSI).

5. Embryo Culture: The fertilized eggs, now referred to as embryos, are closely monitored by highly-trained embryologists as they divide in the laboratory for several days. 

6. Embryo Transfer: The best-quality embryo is then selected for transfer. Using a thin, flexible catheter inserted through the cervix, the embryo is placed directly into the uterus. The goal is for the embryo to implant into the uterine lining and continue to develop into a pregnancy.

7. Post-Transfer Care: After the embryo transfer, progesterone and other medications may be administered to the patient to help support their uterine lining and encourage embryo implantation. Approximately two weeks after the embryo transfer, a pregnancy test is performed to determine if the IVF cycle has been successful.

Is your head swirling with questions after learning about the Alabama ruling? Our physician team is here to help answer them. The following are some common questions we’ve been asked over the past few weeks:

Will the Alabama ruling impact Illume Fertility patients?

The ruling does not currently impact any fertility practice outside the state of Alabama. However, concerns about this recent ruling include the possibility that other states might adopt similar legal precedent.

“Patients have asked about moving their care and their embryos out of the state to a safer place,” said Dr. Barry Witt, reproductive endocrinologist at Illume. “There are concerns that this could spread to other states who have already begun to limit reproductive rights.”

There is some possibility that protections for IVF could be legislated in Alabama or nationally, but that will require a great deal of political support in order to be passed. However, if a federal law was established that was similar to Alabama’s 1872 law and constitutional amendment, then it would affect every fertility clinic in the country.

How did the overturning of Roe v. Wade enable this ruling?

The 2022 Dobbs decision from the U.S. Supreme Court allowed states to regulate abortion, as there is no federal law or constitutionally recognized right to abortion access.

Some states have passed constitutional amendments through ballot measures to allow abortion, while some conservative states (such as Alabama) have voted for State constitutional restrictions on abortion access. 

Many states already had laws or restrictions limiting abortion, but following Roe v. Wade, states could not act on any laws or amendments, as these were deemed unconstitutional. Now, the ultimate decision of how abortion should be regulated is given to each state.

Should frozen embryos be considered children?

“Embryo cryopreservation is essential for success during the IVF process as it allows patients not only to preserve their fertility for future pregnancies, but to test embryos for chromosomal and genetic abnormalities as well,” said Dr. Mark Leondires.

“It is important we realize that a small ball of cells is NOT a child, just as a ball of cells that has been carefully cryopreserved, warmed, and delicately placed into a receptive uterus, not a child,” he emphasized.

Will this ruling affect embryo disposition?

There are a few reasons embryos may be discarded in the IVF process:

1. The cells stop dividing and won’t lead to a pregnancy
2. Genetic testing reveals chromosomal abnormalities
3. Some embryos are left over after patients are done building their families

Embryos can be cryopreserved and stored in liquid nitrogen freezers indefinitely. Most fertility practices freeze embryos after they have developed to the blastocyst stage so that patients can continue using their embryos until they finish family building. 

The Alabama Supreme Court’s opinion refers to all embryos as “extrauterine children,” completely disregarding scientific facts. As a result, embryo disposition in Alabama may face an uncertain future. 

What can I do to help fight this?

If you, like us, are deeply concerned about the future of IVF in the United States, get informed and take action, urges Dr. Barry Witt. 

“I would encourage people to become politically active and contact their representatives in Washington to make themselves heard and share their concerns,” said Dr. Witt to Parents.com. “Ask their congressmen and senators to support Senator Tammy Duckworth’s Access to Family Building Act, which establishes a statutory right to access IVF for Americans nationwide.”

More excellent ways to get involved: