Alabama Supreme Court ruling adds to legal uncertainty around IVF

The big picture: Fertility providers and legal experts say the decision could create major liability risks that could drive up the costs of providing IVF services and force the industry to shutter in the state.

• The University of Alabama at Birmingham on Wednesday paused IVF treatments, citing uncertainty from the ruling.
• IVF advocates also worry that the ruling could encourage other states with strict abortion bans to pursue IVF restrictions.

By the numbers: Roughly 2% of children in the U.S. are born using assisted reproductive technology, such as IVF, according to the Centers for Disease Control and Prevention.

• Under the IVF process, multiple eggs are retrieved and fertilized in a lab. A fertilized egg is transplanted back into the patient, and the others are kept frozen for possible future use.
• Nationwide, there were at least 600,000 embryos in storage in the U.S. in 2020, according to the CDC, although other estimates put that figure as high as 1 million.

What they're saying: The most immediate question that stems from the Alabama ruling is whether an embryo transfer that results in a miscarriage could result in penalties to providers, said Rachel Loftspring, a partner at The Family Law and Fertility Law Group in Cincinnati.

• "Most embryos don't progress to live birth. That's true both of IVF and in nature," Loftspring said. "But if there's a miscarriage, is the doctor in trouble? If a woman has a miscarriage, is she now criminally liable?"
• If stored embryos are damaged as a result of a freezer malfunction, it might previously have been handled as a malpractice claim. In Alabama, it may now mean a wrongful death suit, experts speculated.
• "Why would a doctor put their license on the line by performing something that carries so much risk?" said Lindsay Heller, a partner in the family law department at Fox Rothschild.

Between the lines: IVF "is sort of a numbers game," said Josh Hurwitz, a physician partner at Illume Fertility.

• Providers usually conduct genetic screening on multiple embryos to determine the best candidate and will also seek to screen out embryos with abnormalities.
• Most clinics will only implant a single embryo at a time to avoid the risks associated with pregnancies that involve multiples, following guidance from top medical organizations.

• "Let's say you have two or three [embryos] still in the lab. Are you required to use them?" Hurwitz asked.
• That may sound like an extreme scenario. But he said if the Alabama ruling is interpreted to mean embryos in storage can't be disposed of, it raises questions about what should be done with them.

Zoom in: Clinics typically require clients to sign agreements specifying what should happen to embryos — such as whether they should be destroyed — in the event of a divorce or death of prospective parents.

• The Alabama court's interpretation of the law could essentially override those agreements, turning property disputes into custody battles, Heller said.
• She said it raises the question of whether one party who was involved in creating an embryo has the right to decide to implant it against the wishes of the other involved party.
• "If the embryo is successfully implanted, and the life is created, then the other parent theoretically under this ruling could have a child support obligation from birth until that child's graduation," she said.

Another unsettled question is what happens if patients are no longer able or willing to pay embryo storage fees.

• "When we think about the abandonment of a kid, that's criminal. Well, what if somebody abandons an embryo?" Loftspring said.
• "It sets a really concerning precedent because we see states look around and see what other states are doing and they follow."