The Alabama Supreme Court recently declared frozen embryos as legally recognized children, sending shockwaves through the landscape of reproductive rights. The decision, stemming from wrongful death cases involving the destruction of frozen embryos in a fertility clinic accident, relies on anti-abortion language in the Alabama Constitution and applies an 1872 state law broadly to include “all unborn children, regardless of their location.”
This narrow yet far-reaching ruling has left medical professionals, current IVF patients, and those contemplating fertility treatments grappling with uncertainty and potential obstacles. The implications extend beyond the immediate cases, raising profound concerns about the accessibility and affordability of in vitro fertilization (IVF) and challenging established reproductive rights.
The Defender spoke with Dr. Stephanie Marshall Thompson, a distinguished board-certified reproductive endocrinology and infertility specialist affiliated with CCRM Fertility in New Jersey, who lends her expertise to unravel the layers of this complex issue.
Thompson sheds light on how such rulings disproportionately affect Black women and provides a valuable perspective on the challenges Black individuals may face when considering IVF as a viable family planning option in the wake of legal developments like the one witnessed in Alabama.
Defender: How does the recent Alabama Supreme Court ruling, considering frozen embryos as children under state law, impact IVF treatments, particularly for Black women?
Thompson: First of all, Brown and Black women have so many barriers to care in general that adding on a decision like the Alabama Supreme Court ruling just makes access even more complicated, not just for us, but for all women. I think we are often, as Black women, hesitant to seek fertility treatment. And anytime you see an issue like this, especially one that may have some religious thought process behind it, it makes it even more difficult for us to grasp the concept of how necessary IVF is.
The Alabama Supreme Court ruled that embryos are children and allowed a wrongful death lawsuit when there were embryos that were destroyed in a fertility clinic. It’s very common for us to have excess embryos in IVF. The premise of IVF is to try and make as many eggs as possible at one time, fertilize them, create them, and then create embryos. And then we have the advantage of selecting from those embryos. So, freezing embryos is a common practice in IVF.
Defender: How do you navigate the ethical considerations surrounding IVF treatments and the legal recognition of embryos as children?
Thompson: We see this more in some of the southern states. I would not be surprised if this extends outside of Alabama. I think for the conservatives there, this was a seized opportunity for them to push an agenda that they’ve been trying to push for a long time. That conception begins at fertilization, and an embryo is a child, but an embryo cannot live independently. An embryo cannot live after being thawed without being placed into a uterus, and the majority of embryos will not become a child. That is why we try and create multiple embryos to give us the advantage of selection.
An embryo does have the potential to be a human life in and of itself. It cannot survive on its own. So I think, especially in the Black and Brown communities, there are a lot of moral, ethical questions that do keep patients away from pursuing IVF. But what we have to realize is that the science supports the fact that how we do IVF can lead to a healthy pregnancy and healthy baby. But that does involve fertilizing multiple embryos and the freeze-and-thaw process, depending on the situation.
Defender: How might this affect the accessibility of IVF treatments for Black women, considering existing racial disparities in healthcare?
Thompson: Not everyone can afford to leave the state to do IVF. This impacts patients who are already undergoing treatment in Alabama and elsewhere because a lot of those patients can’t afford to transfer their embryos elsewhere. Half of the clinics in Alabama are not doing IVF at this point because they are concerned about the criminal repercussions. Things that could be considered criminal acts can happen to embryos. For the protection of the clinics, they have not decided to move forward until there is some sort of IVF protection. Access to care will decrease considerably, just like in some states, where the number of OBGYNs delivering babies is considerably reduced. IVF is already something that we don’t have a lot of access to in many states. The patients will be afraid of any repercussions. If they have embryos that they choose to destroy, the clinics will be afraid of repercussions. I just think it’s really unfortunate that this has become a tool for political discussion and taking out the rights of women to be able to make decisions for themselves and couples to make decisions for themselves.
Defender: What steps are being taken to educate Black women and communities about their reproductive rights and the potential impacts on fertility treatments?
Dr. Thompson: We should just continue to follow what’s happening in the developments in Alabama. Speak out and talk to your legislators. We have to be proactive; we have to be advocates for ourselves. There are a lot of national organizations trying to get legislation passed. We need to become involved in this from a grassroots stance.
Defender: Are there alternative approaches or strategies being explored to ensure that Black women can still access fertility treatments despite potential legal hurdles?
Dr. Thompson: Unfortunately, the only thing they can do is to leave the state, which is incredibly, extremely sad. It could be more convenient, it’s affordable. If you were to have insurance coverage, it could be only applicable at some clinics. It’ll ultimately decrease access for Black women, for all women, and all couples. It’s a shame when we have so much great technology that can help a family building. Everyone has the right to reproduce. Everyone has the right to have access to this treatment, and we’re already struggling with that.
Defender: What are some misperceptions you hear about the IVF process?
Dr. Thompson: People think that Black women don’t have difficulty getting pregnant, that infertility is not something our community suffers from. Another misconception about IVF is that it may not be available to you and the majority of America at this point. There are a lot more insurance plans that are covering it. There are some states where IVF is mandated coverage. Those opportunities are opening up.
Another one is the assumption that you’ll have multiple births when a couple tries hard to have one child. If you do IVF, you’re less of a man or woman. That’s a very common one in the Black community, which is not true at all. Especially for Black men who do have a more difficult time being open about their fertility struggles, we’ve been taught that infertility is not something that Black people have. Black women are supposed to hide their struggles and show all this strength, and that can be even more detrimental to us. I encourage everyone to be open to knowing their body. If you don’t get the answers you want when you go to a physician, be persistent. Be an advocate for yourself in your care.
