Medical Errors, Omissions and Exaggerations in the Alabama Embryo Decision
Infertility Care Really Is So Much More Nuanced and Complicated Than the Alabama Supreme Court Understands
I lay on the exam table, feet in stirrups, covered only with a paper sheet from the waist down. And I tried desperately not to pee because I needed my already very full bladder to be “just a little bit fuller” to straighten out the anatomic bend at the junction between my uterus and cervix, which would make the embryo transfer go more smoothly. While this felt as torturous as it sounds, when you are desperate for a successful pregnancy and a child, having your bladder feel like it is about to explode seemed like a small price to pay.
As I waited 20 more minutes, to distract myself, I stared at the screen on the wall, which showed a beautiful cluster of cells. I distinctly remember them, monotone shades of light and dark gray, blurry in the middle, with crisper detailing of the cells on the edges, and a halo around the entire structure. I found it captivating and eerie at the same time. Maybe because in addition to being a woman with infertility, I am an obstetrician-gynecologist. Or maybe because it really was beautiful, in all of its potential. At the time, I just thought it was an artistic addition to the room. There to keep me focused on the prize if I could relax my bladder just a little bit more.
It was only when my doctor came back in the room and confirmed with an ultrasound that “we were ready to go”, that I realized that the screen on the wall was more than just a beautiful work of art. All of a sudden, a micro-pipette appeared on the screen. At the same time, the camera zoomed out beyond its 0.1 mm focus to show that cluster of cells lying within a petri dish, labeled with my name, a string of numbers, and the date of my egg retrieval. In an instant, the blastocyst was in the pipette, which must have been in an adjacent room, because I could barely register that it was off the screen when a person carrying the pipette walked into the room and handed it to my doctor.
In this instant, I realized the reason I was shown that process. That was proof of ownership. That beautiful ball of cells being placed into my uterus was created from an egg that had been retrieved from me 5 days earlier and mixed with my husband’s sperm. It was ours.
While it has been over 15 years since that moment with my first personal IVF experience, the recent Alabama embryo decision makes it feel like it was yesterday. If you’ve never had to seek help getting pregnant, it might be hard to fully understand the ramifications of what happened on February 16, 2024.
Not only is going through infertility treatments difficult to understand because of the complexity of the science, but the emotional toll of wanting a pregnancy month after month is indescribable to those who have never known that longing. Additionally, the ethics involved in ART necessitate a complex balancing act between the ever-evolving scientific standards, the strong desire for success, and the physical and financial cost of such intensive treatments. Ultimately layered over this is the dynamic and charged political landscape of reproductive rights.
The LePage et al v. Center for Reproductive Medicine decision involved 3 separate families who had all undergone fertility treatment at the Center’s Alabama fertility clinic in Mobile. They all had surplus embryos cryogenically preserved but tragically lost them at the hands of an unrelated patient who breached the center and removed them from the tanks. When the tank’s subzero temperatures burned her hands, she dropped them, thereby destroying them. The details of how this person gained access, or why she removed them are not known.
The initial lawsuits filed by the families against the fertility center and the hospital in which it was located, were seeking damages under the state’s Wrongful Death of a Minor Act. They were dismissed, as the trial court concluded that the “frozen embryos in this case did not fit the definition of a ‘person’ or ‘child’ and therefore held that their loss could not give rise to a wrongful death claim.”
The appealed decision by the Alabama State Supreme Court, however, granted them protection under the act, giving personhood to these frozen embryos. The act created in 1872 gave a cause of action for damages for parents of a deceased child “when the death of a minor child is caused by any act, omission, or negligence of any person.”
While they certainly have a right to sue for loss, the true irony in this case, is that in pleading the ultimate injury, the loss of children, they are making it unlikely for IVF to be available to themselves or anyone else in Alabama in the future. Allowing these frozen embryos to be considered as children will effectively end IVF treatment in Alabama, and as neighboring states often take their lead from precedent-setting cases, it has the potential to curtail fertility treatment in the US as a whole.
Typically when legislators and judges decree about women’s reproductive rights, they are discussing access to abortion or contraception, which in the strictest sense act to reduce fertility. However, the recent Alabama Supreme Court decision that blind-sided Americans is attacking reproductive rights in a whole new way, creating a ripple of negative consequences for women desperately seeking pregnancy in that state. Unfortunately understanding the full scope of the damage of this landmark decision is difficult to comprehend if you’ve never been in the room where it happens.
The world has indeed changed dramatically since 1981 when Elizabeth Carr was the first baby born in the US as a result of IVF. The rapid pace of scientific advancements in assisted reproductive technology (ART) requires significant oversight. As with all medical practice, safety in reproductive medicine is maintained by a combination of state and federal government regulation, as well as significant self-regulation by the medical profession itself to assure not only the continuing competence of practicing physicians but also to maintain a standard of best practice care for patients.
The American Society for Reproductive Medicine (ASRM), which was founded in 1944, has a long history of monitoring these advances along with state and federal laws. This has resulted in the production of continuously updated and comprehensive Best Practice Guidelines created by a group of medical practitioners working in the field of ART.
It is these guidelines that fertility clinics follow to instruct the myriad of decision points along any couple’s journey to build their family. This involves not only the care of the couples themselves as they undergo evaluation and treatment, but also the cryopreservation of reproductive cells, the use of pre-implantation genetic testing, and guidelines on the number of embryos to transfer. The development of these guidelines is not only for a successful live-birth outcome, but to minimize the harm to women, and their children if born prematurely, as is often the case with multiple gestation pregnancies.
The ASRM ironically has deep ties to Alabama, as its headquarters were previously housed in Birmingham from 1993 until 2019 when they relocated to Washington D.C. In the wake of the state’s Supreme Court decision, the ASRM prepared an amicus brief in response, highlighting that the justices’ thought process is “based on grave scientific and medical errors, and exaggerated concepts, not based in reality”. And that the “commitment of multiple medical and scientific errors, omissions and exaggerations” by the court is not only “regrettable” but “ignores best practice guidelines”.
In their original ruling, the Alabama Supreme Court posits as one of its major arguments that if the Court were to rule in the clinic’s favor, “even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a child or person because such a child would both be unborn and not in utero.”
For a start, the state Supreme Court is egregiously conflating 2 ideas — fertilization and gestation. Without even a basic understanding of human reproductive biology, it is imagining technologically impossible scenarios.
During a normal, unassisted pregnancy, the fertilization of an egg by sperm occurs in the fallopian tube, outside the uterus. This single cell with DNA from both parents, known as a zygote starts continuously dividing. It has about 6–10 cells by the 3rd day. By day 5, it has reached the blastocyst stage, at which point this ball of 200–300 cells makes its way to the uterus. But it is typically still another 2 days before implantation occurs. It is this event, the attachment of the cells to the maternal endometrial lining that marks the beginning of gestation.
The IVF process replaces these first 5 days. The blastocyst cells are placed inside a woman’s uterus with precise timing to allow for optimal success with implantation. But as millions of women going through IVF know, it is only with implantation that pregnancy begins. As the ASRM states “by erasing the boundaries between fertilization and gestation and hypothesizing about hypothetical future developments in human gestation, the majority strays far both from the facts of this case, and from reality.”
As we have already seen, the immediate response has been for IVF centers in Alabama to halt IVF service. IVF providers were concerned that they would face legal repercussions for getting rid of embryos. This is a common reality of IVF, that occurs both accidentally, as not all embryos develop fully, or can be damaged in the process of freezing or thawing; or it occurs intentionally because some embryos have genetic abnormalities or are no longer needed.
Typically, before even starting on medication or going through egg retrieval, couples need to identify what to do with both genetically normal embryos that exist in excess of their needs, as well as any abnormal embryonic tissue that might be identified along the way in a process called preimplantation genetic testing (PGT).
I remember doing this, long before we even had any embryos. The clinic nurse and physician sat with my husband and I, and took us through a series of hypothetical scenarios (assuming we had any viable embryos at all as a result of our cycle). They ranged from what to do if we got divorced, or one of us died during the time we had embryos in storage, to the difficult choice of what to do with any embryos remaining after we felt we had completed our family. We also had to decide if we wanted PGT, and then what to do with any genetically abnormal embryos.
The standard choices in 2007 when my husband and I reviewed our contract ranged from donation of fertilized embryos to a childless couple for attempted implantation in her uterus, donation of embryonic tissue to scientific research (which would result in destruction, not in further development or live birth), or destruction of embryonic tissue after a period of time in storage.
All 3 plaintiff families in the Alabama case signed contracts with the Center’s storage facility regarding the treatment of their embryonic tissues as property. A review of their decisions indicates that the choices have not significantly changed.
One family elected to ‘destroy any embryos that remained frozen after 5 years’, the second family elected to donate them to medical research for destruction, and the third family elected to donate abnormal embryos to research, and then to discard them.
This was arguably one of the hardest parts of going through the infertility process for my husband and I. Having to make legally binding decisions about donating, discarding, or destroying embryonic tissue that didn’t even exist yet was a grueling exercise that prompted several lengthy discussions about scenarios that we didn’t want to imagine at a time when we were hopefully imagining more mouths at the dinner table.
Despite the difficulty in the decision-making, the underlying premise is that we all, my husband and I, as well as these 3 families, had choices to make. The granting of personhood to embryos eliminates these choices, and forces patients and clinics to eliminate cryo-preservation, as no contract could legally allow for the wanton donation, discardment or destruction of children.
Furthermore, Chief Justice Parker’s assertion that the negative consequences of this ruling will be mitigated by a move to single embryo creation and transfer is shockingly misguided. The elimination of cryopreservation means that patients using IVF “have two remaining options, neither of them advisable”.
The first would be to “immediately implant all fertilized eggs in one transfer in a patient’s uterus.” However, the result would be a surge in higher-order multiple gestation pregnancies, like Octomom in 2009. This seismic surge in high-risk pregnancies would lead to untenable increases in maternal death and pre-term delivery, which carries with it a long list of complications associated with prematurity.
The ASRM has worked hard over the past decade to move toward the implantation of a single normal embryo in all women below age 38 and to limit the transfer to 2 in older women because of the known decreases in pregnancy success that occur with age.
The second option of fertilizing only the 1 (or 2) eggs to be used that cycle ignores the reality that the percentage of embryo transfers that result in live-birth delivery is below 50% for all women, at any age. Not having access to cryopreservation forces women to go through repeated rounds of hormone stimulation and egg retrieval. This places not only undue financial burden on couples but significantly increases the risk to women, and lessens the successful birth rate for couples with infertility.
The current expert recommendation is to limit egg retrieval to 6 cycles per woman per lifetime. Notwithstanding the logistical and emotional nightmare, it is frankly medically safer for a woman to undergo hormonal stimulation and egg retrieval fewer times, hopefully only once, and to cryopreserve embryos than to go through it each time she and her partner attempt pregnancy.
There is a palpable tragedy in the story of these 3 families. They lost the potential they had for one day having more children from embryos they had already created. This loss is unimaginably sad, but surely sits at the hands of the severely misinformed individual who breached the security at the clinic, as well as being due to alleged malfeasance on the part of the clinic.
While there are many medical and scientific details and nuances to understand regarding the use of ART, the Alabama Supreme Court justices made it glaringly clear that they are not medical experts. Therefore, the speculations, mistakes, and omissions by the court’s decision are perhaps understandable, but they are still unacceptable.
As stated by the ASRM in their response “the legislation we’ve seen this week as a proposed solution — even as most recently revised — is inadequate insofar as it fails to correct the Supreme Court’s nonsensical stance that fertilized eggs are scientifically and legally equivalent to children.”
I stand behind the stance of ASRM not only as a women’s health care provider, or a woman having gone through infertility treatment, but also as an American citizen. “Make no mistake: Alabama’s recent legislative response has far-reaching consequences for all Americans’ access to reproductive healthcare. As states look to one another for guidance, Alabama’s lawmakers must courageously lead and identify a solution to ensure everyone has access to standard-of-care medicine and that the law is clear: embryos are not children, and essential health care should not be criminalized. The nation — arguably, the world — is watching.”
