In October, Melissa began an in vitro fertilization cycle. A resident of Birmingham, Alabama, her fertility journey to that point had been not just difficult, but harrowing—earlier that year, she had nearly bled to death during a procedure to resolve a second-trimester miscarriage. When the IVF process yielded just a single viable embryo, she had it frozen, and a few months later started another cycle. “It’s very easy to lose an embryo,” she says. “This is such a delicate process.”
Melissa has a daughter, born when she was younger, but IVF represents her best and last chance to grow her family. After the Alabama Supreme Court ruled last week that embryos are children, all of that is now on hold.
WIRED spoke with three women directly affected by the Alabama Supreme Court’s February 16 ruling, which stated that embryos are “unborn children … without exception based on developmental stage, physical location, or any other ancillary characteristics.” Fearing legal liability given the broad scope of the language, several of the state’s most prominent IVF providers—including the University of Alabama at Birmingham, Alabama Fertility, and the Center for Reproductive Medicine at Mobile Infirmary—have paused treatments. That means patients like Melissa, who is going by a pseudonym given the sensitivity of the topic, are stuck in limbo, and in some cases running out of options.
“I’m rapidly losing time,” says Melissa. The 37-year-old has an autoimmune disorder that she needs to plan IVF cycles around; her ovarian reserves are low enough that her doctors say she has a window of a month, maybe two, to try again. If the ruling holds for much longer, she may not have another chance.
During IVF, patients take hormone-stimulating medications to trigger their ovaries to release mature eggs. The eggs are then retrieved with a small needle and fertilized with sperm in a lab to form embryos. Sometimes a successful IVF cycle can result in several embryos, but doctors typically transfer just one or two into the uterus at a time. Success isn’t promised; about one in three embryo transfers results in pregnancy.
That makes Melissa’s situation especially urgent. There’s no guarantee that her one embryo will result in a birth. But the ruling has disrupted the lives of women at every stage of treatment.
Lochrane Chase started IVF in August, after nearly a year of trying to get pregnant and using less intrusive fertility treatments, such as ovarian stimulation. The 36-year-old Birmingham native was able to freeze and store over two dozen embryos, of which several appeared viable after genetic screening. An embryo transfer in October resulted in a pregnancy, but Lochrane miscarried a few days later. “It was the saddest I’ve ever been in my life,” she says. She tried again in December; again, she miscarried.
Before another scheduled transfer in January, her doctor noticed fluid in her uterine lining; Lochrane underwent surgery in mid-February to address the issue, and scheduled another embryo transfer for March 18. Despite the uncertainty caused by the ruling, she has started taking the necessary hormones anyway in hopes that the situation resolves by then. If not, the medications would have been for nothing, and she’ll be left with no way forward.
That’s due in part to the severity of the new restrictions on embryos in Alabama. Both Melissa and Lochrane looked into getting treatment out of state as soon as the ruling came down, but quickly found that was an unworkable solution. Companies that transport embryos have paused shipping out of the state while assessing the legal risks associated with the ruling. In a statement emailed to WIRED, a representative from the University of Alabama at Birmingham said the health system is working to identify a company that is willing and able to transport their embryos to another facility as soon as possible: “It is our goal to help patients who are interested in this option do so safely, but—at this time—there are no options available.”
Even if patients could transport their embryos, IVF treatment often requires close proximity with the health care provider, making it infeasible for many.
“You have to do blood work every three days. You have to do ultrasounds. To travel to go do that, it’s almost impossible,” says Melissa. Within 24 hours of finding out that her treatment would be affected, Lochrane had made contact with clinics in Boston, Atlanta, and Winston-Salem, North Carolina—conversations that ended when embryo transportation shut down.
The impact is one of lost time and opportunity, but also of cost. Lochrane says she and her husband have spent $50,000 on fertility treatments so far. Each transfer costs $3,500; each round of medication another $500 or so. For Paula, a 38-year-old Birmingham resident, the bulk of her expenses are carried by Progyny, a fertility insurance company that she has access to through her husband’s job.
Paula, who also asked to use a pseudonym, has already undergone one embryo transfer, in April of last year. It resulted in a miscarriage. She now has three frozen embryos left, and had gotten authorization from Progyny earlier this year to attempt another transfer. That authorization has a three-month window, which expires on March 28. “The concern is, if we don’t do it before March 28, will our insurance do another authorization for us, because we live in Alabama?” she says. “It’s been very stressful. My blood pressure has been through the roof.”
In an emailed statement to WIRED, Progyny CEO Pete Anevski said that health care providers “can shift the authorization as needed,” and that the company “will continue to support its member patients and its network providers in Alabama.”
That support can only go so far, though, as long as the Alabama Supreme Court ruling persists. While all three women have frozen embryos, even that practice may be at risk. One of the many uncertainties of the ruling is whether freezing of embryos will be able to continue. “The cryopreservation of fertilized eggs is an essential component of infertility care at this point, and that whole enterprise is very much threatened,” says Sean Tipton, chief advocacy and policy officer at the American Society for Reproductive Medicine, a professional organization that represents fertility specialists. Using frozen embryos for IVF is not only safe but has a higher success rate than fresh embryos.
It’s also unclear how the ruling will impact the egg retrieval process. About five to six days after fertilization, an early-stage embryo, called a blastocyst, forms. But not every fertilized egg goes on to develop into an embryo. This happens naturally, as well as in IVF labs. Under the Alabama ruling, this scenario could also open up a clinic to a potential lawsuit. “With this legal ruling, the question is, if an embryo fails to develop, will these health care providers be found liable for wrongful death or murder or manslaughter?” says Betsy Campbell, chief engagement officer at Resolve, an infertility nonprofit association based in McLean, Virginia.
In a Facebook post, Alabama Fertility Specialists said it is putting new IVF treatments on hold “due to the legal risk to our clinic and our embryologists,” and is contacting affected patients.
In a statement emailed to WIRED, the University of Alabama at Birmingham said its Division of Reproductive Endocrinology and Infertility is pausing egg fertilization and embryo development because of “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.”
The patients whom WIRED spoke with all shared a sense of crushing uncertainty and anger.
“People don’t understand that when you’re put in a position to make decisions like [IVF treatment], you don’t make it lightly,” says Melissa. “That it sticks with you forever. That it changes you. To have laws that prevent you from making decisions that—as gut-wrenching as they are, as hard as they are—that you can’t make them for the health of your family, it’s an indescribable feeling.”
Even Lochrane, a lifelong Alabama resident, says that the ruling has made her seriously consider leaving. “I feel so powerless in this state,” she says. Lochrane is on the board of local nonprofits, serves as a deacon in her church, and is deeply involved with numerous civic organizations. Her family is here, as are her friends. Still, she says, the last week has dramatically shifted her perspective. “If I could move to Boston and have an opportunity to have a family there but not in Birmingham,” she says, “I would be at the airport now.”
IVF providers, patients, and advocates are hoping that the Alabama legislature could allow IVF to continue in the state. Last week, Alabama House minority leader Anthony Daniels, a Democrat, introduced a bill that would establish that a “fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being” under state law. Republican lawmakers are also expected to introduce similar legislation soon.
“We’re hopeful that there will be a legislative fix,” Campbell says. How long that fix takes, though, will have life-altering consequences for many Alabama IVF patients. And if it doesn’t materialize, most will be left with no options at all.
“We have healthy embryos,” says Lochrane. “We just want to be able to have children.”
