Days after Alabama’s Supreme Court ruling that frozen embryos are children, a third clinic pauses IVF treatment

By Isabel Rosales, Christina Maxouris, Meg Tirrell, Chris Youd and Maxime Tamsett, CNN

(CNN) — A third fertility clinic in Alabama has halted part of its IVF treatment programs following the state Supreme Court ruling that frozen embryos are children.

The Center for Reproductive Medicine at Mobile Infirmary said it will stop treatments on Saturday “to prepare embryos for transfer,” according to a statement from the clinic.

Mark Nix, the CEO of Infirmary Health, said in the statement that the Alabama Supreme Court decision “has sadly left us with no choice but to pause IVF treatments for patients. We understand the burden this places on deserving families who want to bring babies into this world and who have no alternative options for conceiving.”

Earlier Thursday, Alabama Fertility’s clinic in Birmingham “paused transfers of embryos for at least a day or two,” according to Penny Monella, the chief operating officer at Alabama Fertility Specialists.

The University of Alabama at Birmingham health system on Wednesday became the first organization in the state to confirm that it is pausing IVF treatment out of legal concerns in the wake of the court’s ruling.

Its announcement could be the start of what reproductive rights advocates and medical experts have been warning about for days: The high court’s decision could have devastating consequences for Alabamians seeking infertility treatments each year to build their families – and it could soon have profound impacts far beyond the state’s borders.

Dr. Andrew Harper, an Alabama fertility doctor, said the ruling disrespected “women’s reproductive autonomy, their reproductive rights,” and will cause him to change how he does business.

Harper, who has been operating his Huntsville clinic for some 20 years, said the ruling provided “motivation to move embryos from in-house to outside, off-site storage facility.” He said he would move more embryos to a facility in Minnesota.

If the embryos are out of state, Harper said, it’s up to the patient to decide what happens to them. “The embryos are ultimately the patient’s … Ultimately, it should be her right to make the disposition, however she chooses,” he said.

His primary concern is advocating for his patients, he said, adding: “If some DA or Attorney General wants to come after me, bring it on.”

State legislators, meanwhile, worked to find a solution.

Democrats in the State House introduced a bill on Thursday that would declare “any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purposes under state law.”

House Bill 225, filed by House Minority Leader Anthony Daniels, would become effective if approved by both chambers and signed into law.

State legislative sources told CNN that Republicans and Democrats in both chambers are working to come up with “clarifying” legislation to “protect” IVF and allow treatments to resume at clinics that have paused the procedure.

One source said Republicans in the state Senate are soon expected to file legislation with language “similar” to what has already been filed in the House, but they were unsure of the timing.

Alabama AG has issued no guidance

In its unprecedented ruling, the state’s Supreme Court said embryos are children – no matter if they’re within or out of a uterus – and those who destroy them can be held liable for wrongful death. That decision will likely not only make the already high costs of infertility treatments substantially higher, but will likely also discourage many providers from offering them at all in the state in fear of being held liable for wrongful death, reproductive rights advocates warned.

The Alabama Attorney General’s Office, meanwhile, said it hasn’t issued any guidance on the matter.

“It’s not our case,” Amanda Priest, spokesperson for Alabama Attorney General Steve Marshall, told CNN Thursday. “We have not been involved at all.”

Priest said she couldn’t share whether the office had received inquiries from clinics seeking legal guidance. She didn’t immediately respond to specific questions about whether the state would charge people who destroy embryos with a crime.

Alabama Fertility has two satellite offices in Huntsville and Montgomery that do not perform embryo transfers and are unaffected, according to Monella.

Alabama Fertility said it made the “impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists.”

In a post on its Facebook page Thursday, the clinic said it’s contacting patients who will be affected “to find solutions for them.” It also said it’s “working as hard as we can to alert our legislators as to the far reaching negative impact of this ruling on the women of Alabama.”

“At a time when we feel so powerless, advocacy and awareness is [sic] our strongest tools. Check back in later today for links to advocacy opportunities,” the clinic wrote.

“AFS will not close,” the statement concluded. “We will continue to fight for our patients and the families of Alabama.”

The Medical Association of the State of Alabama has said that other providers in the state are also likely to stop providing IVF treatments.

CNN has contacted other fertility clinics in the state to inquire about disruptions to their IVF services.

UAB said it was pausing IVF treatments while it evaluates the court’s decision.

“We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments,” its statement said.

“We want to reiterate that it is IVF treatment that is paused. Everything through egg retrieval remains in place. Egg fertilization and embryo development is paused.”

Medical Association of the State of Alabama said, “The significance of (the court’s ruling) impacts all Alabamians and will likely lead to fewer babies—children, grandchildren, nieces, nephews, and cousins—as fertility options become limited for those who want to have a family,” the association said in its statement.

“IVF is oftentimes the only option for couples wanting to conceive,” it added.

What the court ruling means

Though the state Supreme Court’s decision – which was released Friday – does not prohibit IVF, it’s the first known case in which a US court says frozen embryos are human beings, and that could have profound impacts on how the fertility industry in Alabama operates, critics warned.

They say it could send liability costs skyrocketing, making fertility treatment prices prohibitive for many families; it could discourage medical providers from performing infertility treatments in fear of being held liable each time an embryo does not turn into a successful pregnancy; and it could mean parents will now be forced to pay for lifelong storage fees of embryos they will never be allowed to discard, even if they don’t want any more children.

In the sole full dissenting opinion to the decision, Alabama Supreme Court Justice Greg Cook warned of the potential consequences.

“No rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim,” Cook wrote.

The decision will also mean higher costs for people seeking fertility treatments, according to Progyny, a large fertility benefits management company.

“If doctors are now fearful about the penalties associated with offering IVF to their patients, they will instead recommend intrauterine insemination (IUI) treatments, which is a higher risk option that is less likely to result in a pregnancy – so that’s an added cost on the front end for patients,” Progyny Chief Medical Officer Dr. Janet Choi told CNN.

The company also said patients may now have to travel out-of-state to get the care they need as some providers may choose to leave the state – adding a new cost for those seeking fertility treatments.

‘Horrifying signals of what’s to come’

Reproductive rights advocates said they were “heartbroken” by the UAB announcement.

“The University of Alabama at Birmingham (UAB) health system – the largest healthcare system in the state – has been forced to make an impossible decision: pause IVF procedures for those hoping to build their families, or put their patients and doctors at risk of prosecution,” said Barbara Collura, president and CEO of the patient advocacy organization RESOLVE: The National Infertility Association.

And patients who were already amid a physically and emotionally difficult medical process have had “their lives, their hopes and dreams crushed,” Collura said in a statement Wednesday.

Sean Tipton, chief advocacy and policy director for the American Society for Reproductive Medicine, told CNN’s “The Lead with Jake Tapper” patients in the state might get substandard care.

“There is a lot we don’t know about the impact of this (state Supreme Court) decision. What we do know is that it is already leading to fewer babies and fewer grandbabies that are desperately wanted for their parents and grandparents in Alabama. UAB is the first system to stop. I don’t think it’s going to be the last,” Tipton said.

A fertilized egg in a freezer at a fertility facility is not the same as a born child, he said.

“And I think that legal reality needs to adjust to empirical natural scientific reality,” he said. “If you seek to say that a fertilized egg in a freezer is the same as a born child, you can sign patients to getting suboptimal care,” he added.

Critics have also expressed concerns the ruling creates a road map that groups and legislators across the country who have previously targeted fertility treatments can now follow.

Liberty Counsel –- a nonprofit that says it works to advance “religious freedom, the sanctity of human life and the family” -– said it is using the Alabama ruling as a precedent to argue a proposed amendment in Florida aiming to protect abortion rights will take away “a protected right to life for the unborn.”

Collura told CNN she worries about how other groups and legislators who have previously targeted fertility treatments could use the recent ruling as a precedent.

“This cruel ruling, and the subsequent decision by UAB’s health system, are horrifying signals of what’s to come across the country,” she said in her Wednesday statement.

Could this go to the Supreme Court?

While the US Supreme Court does have the power to review state top court rulings, the justices in Washington, DC, do not typically take up appeals of state court rulings that don’t include an interpretation of the US Constitution or federal law.

The majority ruling in this case rested solely on the justices’ interpretation of state law and an amendment to Alabama’s constitution.

Most likely, there’s no route to the US Supreme Court for this case, said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

“The US Supreme Court’s ability to review state supreme court decisions is limited to decisions that turn on a question of federal law,” Vladeck said. “Here, the issue is how Alabama is interpreting its own state constitution.”

“There could be a case claiming that Alabama’s constitution as so interpreted violates the federal Constitution, but unless I’m missing something, that’s not this case,” Vladeck added.

This story has been updated with additional information.

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