The University of Alabama at Birmingham has paused IVF treatments as it examines a ruling by the state’s Supreme Court which determined that frozen embryos should be considered children.
“We are saddened that this will impact our patients’ attempt to have a baby through IVF,” Savannah Koplon, a spokesperson for the university, said in an email. “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’s decision shows the chilling effect that the recent ruling could have on fertility treatment as reproductive rights come under threat in parts of the U.S. The Alabama Supreme Court ruling could leave those who destroy frozen embryos liable for wrongful death.
“This really does mean that IVF is likely to become completely inaccessible in the state,” said Katie O’Connor, director of federal abortion policy at the National Women’s Law Center. “It will just be too legally perilous for doctors” to perform the treatment.
The Alabama ruling has already drawn criticism from the Biden administration, the Medical Association of Alabama and doctors across the country.
White House Press Secretary Karine Jean-Pierre said on Tuesday that the Alabama ruling “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.”
The Department of Health and Human Services said on Wednesday that “the decision in Alabama will have heart-wrenching consequences for women and their families, creating only further uncertainty and fear in a state where women’s access to care has been continually chipped away.” Both the White House and HHS said the administration will continue to work to protect reproductive rights, but didn’t outline a specific strategy.
Alabama, which has a population of more than 5 million, already has a dearth of fertility care, with only eight clinics across the state, according to CDC data. The University of Alabama at Birmingham is home to one of them. Although it has paused its work on egg fertilization and embryo development, it continues to do egg retrievals, UAB said.
The other clinics declined to comment or didn’t immediately respond to requests from Bloomberg News.
The Medical Association of Alabama condemned the state’s ruling and warned that other clinics would likely follow suit, “leaving little to no alternatives for reproductive assistance.”
HHS Secretary Xavier Becerra said questions remain as to what the ruling means for Alabama-based IVF patients should they leave the state. Speaking at a Wall Street Journal-hosted conference on Wednesday and referring to the ruling, he said “I would use the word absurd, but my counsel will probably tell me not to.”
Industry in crossfire
The global fertility market is growing at a steady clip and is expected to balloon to an $84 billion annual business by 2028, according to market research firm Imarc. The number of assisted reproductive technology procedures — mostly IVF — was 413,776 in 2021, up 78% from 2015, according to the Centers for Disease Control and Prevention.
The surge in demand for expensive fertility treatments, which can cost U.S. patients upwards of $10,000, has been accompanied by missteps in the industry. The mishandling of eggs and embryos can result in the loss or significant compromise of an IVF cycle.
Though fertility clinics are required by law to report their IVF success rates to the CDC, there is no regulatory framework in place across the industry that tracks errors such as lost or destroyed embryos. A 2020 study that looked at lawsuits over lost or damaged embryos in the U.S. found 133 cases from January 2009 to April 2019, 87 of which were linked to the failure of two freezer tanks in California and Ohio. Over the same time period, almost 400,000 embryos in total were thawed, according to the study.
“The potential implications of this ruling are wide-ranging and will create a lot of confusion and concern for those seeking fertility treatment, as well as providers,” said Candace Gibson, the director of state policy for Guttmacher Institute, a leading researcher of reproductive health care and abortion. “This type of decision opens the door to further restricting the bodily autonomy of pregnant people.”
Brian Levine, practice director at CCRM New York, a fertility clinic, said he’s “terrified about what this means for the future of fertility treatments in America.”
“Infertility affects one in six people,” he said. “It concerns me that this could have a trickle-down effect to other states and ultimately create another obstacle to crucial care.”
