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The exterior of the Alabama Supreme Court building in Montgomery, Ala., is shown Tuesday, Feb. 20, 2024. (AP Photo/Kim Chandler)

The Alabama Supreme Court ruled on Friday, Feb. 16, that frozen embryos conceived via in vitro fertilization, or IVF, are human beings under state law, a decision that reproductive rights advocates say could be disastrous for families dependent on fertility treatments.

“The Alabama Supreme Court’s decision in LePage v. Mobile Infirmary Clinic will severely limit or effectively remove access to in vitro fertilization from the people of Alabama, unjustly and unfairly denying them the ability to build their families through a critical, effective fertility intervention that represents one of the most significant medical advances of the last century,” Dr. Verda J. Hicks, president of the American College of Obstetricians and Gynecologists said in a statement.

The process of in vitro fertilization involves removing eggs from a woman’s ovaries and fertilizing them with sperm, resulting in an embryo that can then be frozen for future use or implanted into a uterus.

“This Court has long held that unborn children are ‘children’ for purposes of Alabama’s Wrongful Death of a Minor Act … a statute that allows parents of a deceased child to recover punitive damages for their child’s death,” Justice Jay Mitchell said in his opinion, citing an Alabama law dating back to 1975.

The Supreme Court’s decision reverses the dismissal by Mobile County Circuit Court Judge Jill Parrish in 2022 of a wrongful death lawsuit brought in 2017 by three couples against the Mobile Infirmary and the Center for Reproductive Medicine after their embryos were allegedly destroyed by a patient in the facility where they were being stored.

“While Michigan has made great strides in protecting reproductive freedom, we must remain vigilant to ensure these backward policies never take hold in our state – whether through the state legislature, Congress, or federal judges handpicked by anti-abortion politicians,” Ashlea Phenicie, Chief Advocacy Officer of Planned Parenthood Advocates of Michigan said in an email sent to the Michigan Independent. 

When the U.S. Supreme Court overturned Roe v. Wade in June 2022, Alabama began enforcing a total ban on abortion at all stages of pregnancy.

In 2018, Alabama voters passed a ballot measure to “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” The measure did not mention frozen embryos.

In an email sent to the Michigan Independent, Dana Sussman, deputy executive director of the reproductive rights group Pregnancy Justice, said: “This decision continues the acceleration of the dangerous doctrine of fetal personhood in a state that has long professed an interest in fertilized eggs, embryos, and fetuses while neglecting the needs of pregnant people, babies, and families. … This decision further entrenches an ideology that has long been used to control pregnant people and the decisions they are allowed to make about their lives.”

The rhetoric used by anti-abortion groups to paint embryos as human beings with full legal “personhood” rights goes back to the ruling by the Supreme Court in Roe in 1973d when the 14th Amendment was used to argue that a fetus is a person; Justice Harry Blackmun rejected that interpretation in the majority opinion.

In a statement sent to the Michigan Independent, Kelly Baden, vice president for public policy at the Guttmacher Institute, said the personhood argument is a radical concept championed by the anti-abortion movement.

“The potential impacts are vast — your ability to build a family, continue a healthy pregnancy, or choose abortion are all connected; judicial and legislative attacks on one impact all,” Baden said.

During the process of in vitro fertilization, doctors will often recommend that multiple embryos be created in order to increase the odds of obtaining one healthy embryo to be implanted. Once a patient becomes pregnant, the unused fertilized embryos can be donated to another person, frozen, or disposed of as medical waste — a decision that can be extremely difficult to make.

In 2019, Dr. Eric Widra, executive senior medical officer of Shady Grove Fertility, a reproductive health care clinic with locations across the nation, told Philadelphia NPR affiliate WHYY that he finds some people have difficulty deciding what to do with unused embryos, a decision that may be influenced by the abortion debate as a whole.

“They’re torn because they feel a certain responsibility to these embryos,” Widra told WHYY. “And they often have very strong mixed feelings about what they should do.”

Some people simply stop paying to store their embryos and leave the decision up to the fertility clinic. 

“That’s consistent across the research,” Alana Cattapan, an associate professor at the University of Waterloo and a specialist in gender and public policy and reproductive justice, told HuffPost. “People don’t want to make a decision about it.”

According to the Pew Research Center, 42% of U.S. adults have used fertility treatments or know someone who has.

“The outcome of this case will certainly affect access to fertility treatment across the country as more and more state legislatures advance policies that are based on an ideological and unscientific definition of personhood. It reflects a dangerous insertion of individual ideological beliefs into policy making about what medical care is available to all of us,” Hicks said. 

Correction Feb. 28: A previous version of this story referred to Dana Sussman as the executive director of Pregnancy Justice.

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