Alabama Supreme Court

The Alabama Supreme Court ruled, Tuesday, Feb. 20, 2024, that frozen embryos can be considered children under state law. The decision was issued based on a wrongful death case by three couples whose frozen embryos were destroyed in an accident at a fertility clinic.

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This ruling has devastating consequences for all people who are experiencing infertility or need assisted reproductive technologies to create their families. As a result of the ruling, fertility clinics in Alabama have paused their in vitro fertilization (IVF) programs, fearing future lawsuits if embryos are destroyed, damaged or go unused.

The population most immediately impacted by this will be women with a cancer diagnosis. Cancer treatments pose risks for infertility. The American Society for Reproductive Medicine and the American Society for Clinical Oncology, as well as the American Academy of Pediatrics, highly recommend that all patients of reproductive age who are diagnosed with cancer, even prepubertal children, be counseled on the risk of infertility and referred to infertility specialists to discuss fertility preservation options. Typically, patients have a limited window of time in which to have these discussions, make decisions, and proceed with IVF.

For women in partnered relationships and those in their later reproductive years who may not be partnered but are willing to use donor sperm, cryopreserving embryos represents their best chance for a future genetically related child. Typically, multiple embryos need to be created in the hopes that at least one survives the freezing and thawing process. Receiving a cancer diagnosis is overwhelming, and there are many decisions that must be made in a short period of time. If IVF services are no longer available in Alabama, and other states may follow this lead in the months to come, it is unlikely that patients diagnosed with cancer will have the time or resources to travel to another state to create embryos. Many people will survive their cancer, and the ability to create embryos represents a ray of hope during a dark time. This ruling is a major blow to women’s reproductive autonomy and will significantly impede, if not abolish, the possibility for women diagnosed with cancer to achieve their family building goals.

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