There are only five fertility clinics in all of Alabama. This isn’t an absurdly low number, necessarily. Only 1.5% of the U.S. population — around 5 million people — live in Alabama. So, if fertility clinics were distributed proportionately to population, then in a country with around 500 fertility clinics, Alabama ought to have 7.5, which isn’t a ton more than five. But, for comparison, I live in Los Angeles, where there are 36 fertility clinics with 47 locations to serve a population of 3.85 million residents, and it can still be incredibly difficult to find a clinic that has an appointment in the near future and takes your insurance (not that insurance actually covers fertility treatments, but insurance usually does cover the appointments you have about those treatments). Alabama doesn’t have the lowest ratio of clinics to population in the country, but it does perform, proportionately, less ART (Assisted Reproductive Technology) procedures per year than any other state and reports the second-lowest number of ART births per year. There are many reasons for this, I imagine, but without getting into all of those, let’s tackle the most obvious one: ART is an expensive and time-consuming endeavor that’s already inaccessible to many parents who might benefit from it.

This week, many prospective Alabaman parents are worried that what was once a difficulty will become an impossibility, due to a shocking state Supreme Court ruling in which the justices decided to go with God and rule that IVF embryos are people because God said so. This has especially alarming implications for hopeful queer parents, who in most cases cannot conceive via sexual intercourse, and in Alabama, already faced a lot of adversity as parents. At least three fertility clinics have halted I.V.F treatments since the ruling was announced and the GOP is scrambling to contain the damage.

How did we get here? Well, it begins with a patient sneaking into a “cryogenic nursery” and dropping a bunch of embryos on the ground and ends with a violently conservative Judge who hates women quoting the Bible in a court ruling. Let me explain:

So A Man Walked Into a Cryogenic Nursery…

Three straight couples were doing IVF with a fertility clinic in Mobile, Alabama. In IVF, eggs are transferred out of a uterus-having person’s ovaries and fertilized with sperm (from their partner or a donor) in a laboratory, thus creating embryos. Then, one or more viable embryos are popped into the body of the hoping-to-be-pregnant person, in hopes of — you guessed it — getting them pregnant!

Often, one round of egg retrieval and fertilization can create multiple “good” embryos, but usually, only one embryo is transferred into the hopeful parent. Thus, extra embryos can be frozen and stored in case the first transfer doesn’t result in pregnancy, or if the parent wants to have more children later. If the parent’s done having kiddos, they’ll then choose to destroy, donate, or sell their remaining embryos.

So, there were three couples — the LePages, the Fondes and the Aysennes — who’d all had two successful IVF pregnancies each at the Center for Reproductive Medicine in Mobile, Alabama. They also all had extra embryos, which they’d stored in the clinic’s “cryogenic nursery.” Somehow — and honestly this is a really wild part — a patient at a hospital connected to the clinic “wandered” into the chambers, which were left unlocked, removed several embryos and then, because of the subzero temperatures the embryos were stored in, freeze-burned his own hands. The shock of the burn caused him to drop the embryos.

Obviously, the parents were upset, which is totally understandable, and they wanted some compensation for their losses. Each round of IVF requires a lot of the human body as well as a ton of time, and a ton of money — up to $30k per round. It’s unclear what the parents’ exact circumstances were, but it’s certainly possible these lost embryos destroyed their chances of having additional children. Thus, they pursued litigation.

Unfortunately, this case is not as rare as you’d hope — there have been other incidents resulting in embryos being destroyed for all kinds of reasons — a shipping company opening a package, a malfunctioning medical liquid intended to support embryo growth, embryos somehow simply being “lost.”

When five parents in California lost embryos in 2018 due to malfunction in a fertility clinic, they successfully sued the clinic for $15 million dollars. They managed to do this without doing what the plaintiffs in this case did — which was sue for Wrongful Death of a Minor, which would require proving the embryo is a full person.

The Clinic Argues Plaintiffs In Alabama IVF Case Have Anti-Choice Agenda

The clinic argued that the plaintiffs’ “true motives are not about compensation for their loss, but about making a larger statement about abortion rights,” because, they say, if it was really about compensation, they would’ve instead filed “the more logical claims of breach of contract and bailment against the clinic.”

They also argued that the plaintiffs were contradicting themselves by claiming the that embryo destruction was murder. The Fondes signed a contract to automatically destroy embryos frozen for over five years, the LePages agreed to donate extra embryos to medical researchers for projects that could result in their destruction, and the Aysennes agreed that any abnormal embryos created through IVF could also be used for research and consequential destruction. The court determined that it didn’t matter because the defense hadn’t yet invoked “waiver, estoppel or similar affirmative defenses.”

It is truly unclear where the plaintiffs stand in all this or what their role was in taking this specific approach to the case, and I’m not legally fluent enough to understand the breadth of their options. It doesn’t make sense that they’d knowingly engage in a process that would stop other parents from building a family with IVF. They’ve not been quoted anywhere.

Alabama Supreme Court Concludes Embryos Are People Because God Said So

The case was dismissed by a lower court on the grounds that “in vitro embryos do not fit within the definition of a ‘person’ or a ‘child,” and thus the plaintiffs took their case to the supreme court, where they found great success.

In his majority opinion, Justice Jay Mitchell wrote that there’s no exception for frozen embryos under an 1872 law allowing civil lawsuits for the death of children (frozen embryos were obviously not a thing in 1872), writing it’s not the role of the Court to craft a new limitation based on their own view of what constitutes public policy, especially in a state that recently passed an amendment “directly aimed at stopping courts from excluding ‘unborn life’ from legal protection,” referring to the 2018 amendment to the Alabama constitution recognizing ‘the rights of the unborn’ that prohibited state funds from going towards abortion care.

Chief Justice Tom Parker (a big fan of the confederacy!), in his concurring opinion, quoted the bible ten thousand times, eventually concluding that:

“even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory… The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness.”

Justice Greg Cook was the only judge to file a full dissent, arguing that the Wrongful Death Act does not define the term “minor child.” He asked the Alabama legislature to address this discrepancy, writing that “no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages.”

Planned Parenthood Alabama president Stephen Stetson found the ruling “extremely alarming” and “judicial overreach” as well as “part of a concerted long term plan to justify government intervention in people’s bodies.”

Justice Parker Claims Other Countries Are Already Restricting Embryo Creation So Why Can’t We

Parker writes that Cook’s fears of IVF ending in Alabama are unfounded because other countries have found ways to permit IVF without freezing extra embryos. In Australia and New Zealand, he claims “prevailing ethical standards dictate that physicians usually only make one embryo at a time.”

I see no such recommendation in the literature he refers to, which merely recommend only transferring one embryo at a time into the body to avoid the potential increased risk of multiple pregnancies. It doesn’t say anything about creating multiple embryos. I might be missing something, but I can’t imagine any doctor ethically recommending a parent endure more egg retrievals than necessary. In its Amicus Brief, the Alabama Medical Association laid out multiple reasons why the ability to cryopreserve additional embryos is beneficial to the health of parent and their potential children.

Parker then celebrates Italy’s (former!) position on creating multiple embryos, as if Italy was not a radical outlier on this issue due to the influence of the Catholic Church. In 2004, Italy passed a law restricting embryo creation to three per cycle, all of which have to be implanted into the potential parent because none can be frozen. Italy also outlawed donating sperm or eggs. The result: LGBTQ+ parents and single parents could not have children, most parents with infertility issues could not have children, many Italians traveled elsewhere for IVF, and success rates at IVF clinics in Italy plummeted. These provisions were eventually overturned, but single people and same-sex couples were still barred from using fertility treatments. Things in Italy are pretty dire for same-sex parents at the moment!

The 19th, reporting just before the overturning of Roe v. Wade, cited Italy as a cautionary tale regarding what could happen if embryos are considered people in the U.S., leading to limitations being placed on the number of eggs that can be retrieved in a cycle or banning embryo preservation: IVF treatment success will decrease, and “patients will have to endure — and pay for — more IVF transfers.”

As Mamie McLean, a physician at Alabama Fertility Specialists told The Washington Post, “If we are to say, ‘Okay, I can fertilize two eggs instead of 10,’ we may not end up with any embryos or end up with an unhealthy embryo, so patients may need multiple egg retrievals to achieve the same pregnancy rate that we were trying to achieve with one retrieval. Multiple attempts at retrieval will cost more money.”

It also bears mentioning that it costs more to do IVF in the United States than anywhere else on the planet, particularly for LGBT couples.

Alabama Clinics Are Halting IVF Services as GOP Fractures

So far, Judge Cook’s conviction that this ruling won’t impact IVF services in the state, like most of his ideas and opinions, have been incorrect. On Thursday, The University of Alabama-Birmingham paused all IVF procedures, making it one of now at least three clinics who have done so. Cyroport, a major embryo shipping company, “paused” doing business in Alabama while it analyzes the ruling’s implications.

Within the GOP, there’s a massive divide around this issue, plus the added complication of Republicans having insisted that the fall of Roe wouldn’t impact IVF. Former VP Mike Pence and his wife had three children through IVF. Noted evil predator Donald Trump called on the Alabama legislature to “act quickly to find an immediate solution to preserve the availability of IVF.” The National Republican Senatorial Committee has distributed talking points urging Republicans to voice support for IVF.

On Friday, Alabama Attorney General Steve Marshall announced he had “had no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting I.V.F. families or providers.” The chair of the Alabama Senate’s Healthcare Committee is attempting to rush a bill through legislature that would preserve IVF access.

Republican presidential candidate Nikki Haley “waffled” on her reaction to the ruling, while being clear that she believes “embryos … are babies.” But Politico reports that lawmakers in other statehouses, including Missouri and North Dakota, have been inspired by the ruling to consider new restrictions on IVF in their home states.

In many ways, the worst case scenario here wouldn’t be a total ban on IVF in Alabama, but the in-between place where the GOP can claim they support IVF while also prohibiting freezing additional embryos, which would make the procedure only available to the super-wealthy. People with uteruses who embark on an IVF journey would also need to have the time and physical ability to endure multiple unnecessary rounds of egg retrieval. It’ll get more challenging to recruit and train doctors in the state as most will choose to practice in states with lower liability and less legislative intervention in a doctor’s ability to practice ethical medicine.

In Conclusion, We Are F*cked

Although the majority of articles about this issue have focused on opposite-sex couples with infertility struggles, this ruling will have a massive impact on queer parents specifically, as we’re more likely than straight people to be in relationships in which both parents have a uterus or both parents don’t, meaning we’re often unable to get pregnant through sexual intercourse.

The cheapest way for a lesbian couple in which both partners have uteruses to get pregnant is at-home insemination. But getting sperm from a sperm bank is expensive. (California’s largest sperm bank recently hiked up their prices to $2k per vial.)  The legal process of using a known donor can be expensive too, and the logistics and planning required to coordinate multiple inseminations with a known donor can be cumbersome. Therefore queer parents with any infertility problems, including “advanced age,” will often be opting for services offered by a fertility clinic, whether that be an IUI (when a doctor inserts sperm directly into the uterus) or IVF. Many lesbian couples specifically opt for reciprocal IVF (where the eggs of one partner are fertilized with sperm into an embryo which is then inserted into the other partner). IVF is the more expensive procedure, but it also has the highest chances of success.

Abortion is already entirely outlawed in Alabama, even in cases of rape or incest. This doesn’t only impact pregnant people who don’t want children, it also impacts pregnant people who do, because abortion restrictions also place limitations on miscarriage care, and force parents to carry to term babies with a life-limiting diagnosis. This in and of itself made pregnancy risky for any hopeful parent in Alabama.

Doctor Paula Amato, president of the American Society for Reproductive Medicine, told The New York Times she predicts eventually “modern fertility care will be unavailable to the people of Alabama.”

I’d like to end this piece with a quote from God: “be fruitful and multiply, as long as you don’t freeze any embryos in the process.”

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