On February 16, 2024, the Alabama Supreme Court issued a ruling declaring that embryos created through in vitro fertilization (IVF) should be considered children. The legal dispute emerged from a wrongful death lawsuit initiated by three couples whose embryos were tragically lost at a fertility clinic in 2020. The incident occurred when a patient entered the area where the embryos were stored. After attempting to reach in and grab some, he burned his hand due to the extremely cold temperature, and as a result, he accidentally dropped the embryos of the couples. They hit the ground and were destroyed.
Those couples then pursued legal action against the Center for Reproductive Medicine and the Mobile Infirmary Association under Alabama’s Wrongful Death of a Minor Act. While the law traditionally covered fetuses, it did not expressly encompass embryos of in vitro fertilization (IVF).
Initially, a lower court ruled that the embryos lacked the legal standing of persons or children, thus precluding the advancement of the wrongful death lawsuit. However, in a shocking ruling, the state’s Supreme Court court sided with the couples, affirming that frozen embryos should be regarded as “children” under the purview of the state’s wrongful death law and have the same protections. Embryos destroyed at clinics and hospitals can lead to wrongful death suits lodged against those offices and institutions.
The court’s decision, which extended the law’s application to encompass “all unborn children, regardless of their location,” has far-reaching implications for the legal status of embryos and the landscape of reproductive rights in Alabama.
Less than a week after the Alabama Supreme Court ruled that embryos created through in vitro fertilization were considered children, three major IVF providers in the state suspended services as they feared the legal repercussions of the decision. After facing mounting pressure to reinstate in vitro fertilization (IVF) services in the state, Governor Kay Ivey promptly enacted legislation into law on March 7 aimed at protecting doctors from legal repercussions of the Alabama Supreme Court Ruling.
In response to public outcry and a swift legislative effort, the bill swiftly passed. As a result, doctors from several primary fertility clinics in Alabama have since announced plans to resume IVF services. Despite the resumption of services, individuals and families navigating fertility treatments are now forced to grapple with the lingering effects of the interruption in its aftermath.
Heather Skanes, MD, founder and executive director of Oasis Women’s Health clinic located in the west end of Birmingham, says that the recent ruling has already had a significant impact on fertility treatments, causing more delays and financial burdens for patients, particularly Black and Brown ones who are already marginalized in the medical community. “Many people of color have already felt like the odds are against them when it comes to receiving fertility treatment,” Skanes says. “People aren’t necessarily diagnosing them with infertility as soon as they should be diagnosed, and then too many people aren’t being offered fertility treatments once it is diagnosed. It feels like providers are telling patients, ‘You’re infertile. Good luck,’ and people feel like they don’t have the information to make the necessary decisions.”
The most recent infertility data from the Centers for Disease Control reveals that while more than 13% of American women ages 15 to 49 have impaired fecundity, Black women are almost twice as likely as white women to suffer from infertility. They are also less likely to seek out and receive fertility treatments. This is not necessarily because Black women don’t want to partake in IVF. Treatment costs can be substantial, often ranging from $10,000 to $15,000 per cycle, not including additional expenses such as medications, consultations, and diagnostic tests.
When we consider the demographics of individuals who lack adequate insurance coverage, we find that Black Americans are overrepresented. The lack of insurance coverage for IVF then poses a substantial financial burden for Black individuals and families seeking fertility assistance. Aside from systemic barriers in accessing IVF treatments, many Black women and people seeking care have to contend with the cultural stigma surrounding fertility treatments that is deeply entrenched within Black communities.
Historically, there has been a prevailing notion that seeking medical assistance equates to personal failures and shortcomings. As a result, many individuals struggling with infertility may feel as though they have to conceal their struggles with it and may be reluctant to pursue treatments like IVF out of fear of judgment. Black women facing infertility may also experience further ostracism due to societal judgments about how they spend their money.
So for those who find the courage, and the funds, to seek treatment in the hopes of expanding their family, Skanes notes that this ruling is part of a more significant shift in healthcare practice, where legal considerations supersede scientific judgment, potentially compromising patient care and outcomes. This trend is not isolated to Alabama but reflects broader challenges in navigating reproductive healthcare policies nationwide.
“These rulings that are coming down restricting access to health care are going to continue to change the way people practice and not based on evidence, but based on concern for liability. Healthcare providers have a critical role in supporting patients through their fertility journeys,” Skanes emphasizes. “It’s about providing compassionate care, offering tailored treatment options, and ensuring patients feel empowered and supported at every step. In the face of overwhelming pieces of legislation that are not at all aligned with best practices or evidence-based medicine, providers still have a commitment to share and facilitate access to reliable information.”
For individuals and families within the LGBTQ+ community, the path to parenthood is often colored by its own set of unique challenges. IVF serves as a resource of hope, offering an avenue to overcome these obstacles and realize the dream of starting a family. Mia Cooley, reproductive health advocate and the founder of xHood, provides fertility, family building, and nurturing support to the Black Queer community. Cooley says the platform was born out of a personal need for a community where Black LGBTQ+ parents could come together, free from the experiences of homophobia, transphobia, and racism often found in other spaces. Since its inception on Mother’s Day in 2019, xHood has grown into a vibrant and supportive community, offering resources, events, and a sense of belonging to Black LGBTQ+ parents across the globe.
As she navigated the byzantine path of fertility treatments and reproductive rights as a queer Black parent, Mia Cooley’s journey has been marked by her resilience and perseverance amid systemic obstacles. Reflecting on her experiences, Mia shares, “The journey to parenthood is already a profound and vulnerable chapter in anyone’s life. However, for queer Black parents like myself and my partner, the experience is often marred by discrimination and unwillingness to learn from medical providers.”
She continues, “Navigating the labyrinth of fertility treatments as a Black queer person felt like a constant battle against a system designed to exclude and invalidate us at every turn. The emotional toll of fertility treatments is often overlooked. It’s a rollercoaster of hope and despair, compounded by the stigma and discrimination faced by Black individuals seeking reproductive care. Each appointment, each procedure, felt like another hurdle to overcome in an already arduous journey,” she says.
“But we persisted because the desire to become parents outweighed the obstacles in our path,” Cooley adds. “The financial strain of fertility treatments is immense. It’s a burden that disproportionately affects Black families, who are already grappling with systemic inequalities and barriers to accessing healthcare. There were moments when we questioned whether it was worth it, whether the toll on our mental and emotional well-being was too high. But in the end, the joy of holding our child in our arms made every sacrifice worth it.”
As the post-Dobbs saga unfolds, we are witnessing a persistent trend of regressive policies that restrict access to reproductive healthcare services. Motives of anti-abortion leaders are becoming increasingly more apparent. Advocates for abortion rights have long warned about the repercussions of overturning Roe v. Wade, and now, as abortion is increasingly isolated and marginalized as an option rather than integral healthcare, we are beginning to witness the broader implications of anti-abortion laws on other facets of reproductive care nationwide. The recent decision in Alabama to shield IVF providers from legal liability illuminates this trend.
While ensuring provider protection for medical care access is vital, so is the patient. Are we also ensuring the law is adequately protecting those seeking fertility treatments, especially those belonging to communities that face increased risks of criminalization for pregnancy outcomes?
Cooley states, “This ruling also reflects a broader issue of reproductive justice—one that encompasses not just access to care but also the right to parent in safe and supportive environments. It’s a reminder that reproductive justice is not just about the right to have children, but also the right to raise them in communities that affirm and celebrate our identities.”
“As we continue to fight for reproductive justice, let us remember that our struggles are interconnected,” she adds.” By standing together, we can create a world where all families are respected, valued, and protected.”
