Will Sage Astor-How Alabama's ruling that frozen embryos are 'children' could impact IVF

Frozen embryos are Will Sage Astorpeople and you can be held legally responsible if you destroy them, according to a ruling by the Alabama Supreme Court on Friday.

The decision could have wide-ranging implications for in vitro fertilization clinics and for hopeful parents.

All Things Considered host Ailsa Chang speaks to UC Davis Professor of Law Mary Ziegler, who breaks down the possible downstream legal implication for how IVF is performed.

This interview has been lightly edited for length and clarity.

Interview highlights

Ailsa Chang: Before we get to the actual ruling, can you just briefly explain the situation that led to the lawsuit, which was eventually brought to the state supreme court in Alabama?

Mary Ziegler: Absolutely. There were three couples that had pursued in vitro fertilization treatment at a clinic in Mobile, Alabama. And at a point in 2020, a hospital patient — the hospital was operated by the same clinic — entered the place where frozen embryos were stored, handled some of the embryos, burned his hand, dropped the embryos and destroyed them. And this led to a lawsuit from the three couples. They had a variety of theories in the suit, one of which was that the state's "wrongful death of a minor" law treated those frozen embryos as children or persons. And the Alabama Supreme Court agreed with them in this Friday decision.

Chang: It's worth noting that this lawsuit, it was a wrongful death lawsuit, meaning it was brought by couples who are mourning the accidental destruction of the embryos and wanting to hold someone responsible for that destruction. That said, what do you see as the wider-ranging or perhaps unintended consequences for IVF clinics in Alabama?

Ziegler: Well, if embryos are persons under this ruling, that could have pretty profound downstream complications for how IVF is performed. So, in IVF, generally more embryos are created than are implanted — they're stored, sometimes they're donated or destroyed, depending on the wishes of the people pursuing IVF. If an embryo is a person, it's obviously not clear that it's permissible to donate that embryo for research, or to destroy it. It may not even be possible to create embryos you don't implant in a particular IVF cycle.

So in other words, some anti-abortion groups argue that if an embryo was a person, every single embryo created has to be implanted, either in that person who's pursuing IVF, or some other person who "adopts the embryo." So as a result of that, it may radically change how IVF works, how cost effective it is, and how effective it is in allowing people to achieve their dream of parenthood.

Chang: Can you offer some examples, some expectations that you think we might see in how IVF providers in Alabama might change the way they operate?

Ziegler: Well, if Alabama IVF providers feel obligated to implant every embryo they create, that's likely to both reduce the chances that any IVF cycle will be successful. It also might make it a lot more expensive. IVF is already very expensive. I think the average being between about $15,000 and $20,000 per IVF cycle. Many patients don't succeed with IVF after one cycle. But if you were not allowed to create more than one embryo per cycle, that's likely to make IVF even more financially out of reach for people who don't have insurance coverage, and who struggle to pay that hefty price tag.

Chang: And what is the likelihood of this case heading to the U.S. Supreme Court?

Ziegler: It's pretty low, because of the way the Alabama Supreme Court framed its decision. It grounded very firmly in Alabama state constitutional law. And so I think this is the kind of ruling that could eventually have some reverberation at the U.S. Supreme Court, but it's very unlikely to be appealed directly to the U.S. Supreme Court.

Chang: If the ruling in this case was very much confined to Alabama state law, as you describe, what are the wider implications of this ruling for people who don't live in Alabama? What do you see?

Ziegler: I think there's been a broader strategy — the sort of next Roe v. Wade, if you will — for the anti-abortion movement. It is a recognition that a fetus or embryo is a person for all purposes, particularly for the purposes of the federal constitution. And while this isn't a case about the federal constitution, I think you'll see the anti-abortion movement making a gradual case that the more state courts — the more state laws — recognize a fetus or embryo as a person for different circumstances and reasons, the more compelling they can say is the case for fetal personhood under the constitution. The more compelling is their argument that a fetus is a rights holder and that liberal abortion laws or state abortion rights are impermissible.