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Putting a Freeze on IVF

Human female egg cell on colorful background. 3D illustration

Building a family is always challenging, but for many, getting the process started can be the most difficult step. In the United States, approximately 20% of women of child-bearing age are infertile, meaning they are unable to become pregnant within a year of trying. Dealing with infertility can be a traumatic and frustrating experience, and many prospective parents go to extraordinary lengths to conceive. One approach couples can turn to is in vitro fertilization (IVF), which accounts for roughly 2% of all births in the U.S. Recently, IVF has made headlines after the Alabama Supreme Court ruled in February that all embryos created with IVF should be treated as children, causing multiple IVF clinics to halt treatment. This decision has sparked new discussion and debate, and has left many wondering what exactly IVF is, and why is it being legislated?

What is IVF?

IVF is a four-step process: First, hormone injections are administered to a person with ovaries to generate mature eggs. Second, the eggs are retrieved and examined, and, if they are suitable for IVF, manually fertilized in a lab (hence, in vitro fertilization). After five to six days, embryos are then either frozen or transferred to the uterine cavity. Two weeks later, a pregnancy test can determine whether the process was successful. From injections to testing, one IVF cycle can take between two and four months. The success rate of IVF is highly variable: Approximately 55% of women under 35 are successful on their first cycle, whereas women over 38 are successful only about 26% of the time. These numbers also depend on additional factors, such as whether an egg donor is used and a person’s reproductive history and lifestyle.

Why is IVF a legal issue?

The main point of contention addressed by the Alabama Supreme Court’s decision is the legal status of frozen embryos. Over the course of IVF treatment, couples generate extra embryos that may be used in the event of a failed cycle or saved for future pregnancies. These embryos can be stored in “cryogenic nurseries” for many years, assuming appropriate conditions are maintained. In this case, however, an unattended hospital patient was able to access a cryogenic nursery, where the patient removed and ultimately destroyed frozen embryos. The loss of these embryos affected multiple couples, three of whom filed lawsuits that were initially dismissed. However, on appeal, the Alabama Supreme Court held that “unborn children are ‘children,’” even when they are outside of the womb, and thus are protected by Alabama’s Wrongful Death of a Minor Act.

Although all three couples successfully gave birth using IVF, they wished to retain their frozen embryos, which would have allowed them to have additional children at a future date without repeating the first two steps of the IVF cycle. Thus, these parents were potentially deprived of the ability to grow their family.

How does the Alabama Supreme Court’s decision affect IVF?

After the Alabama Supreme Court’s ruling, fertility clinics and doctors have to contend with the possibility that any loss of a frozen embryo — whether intentional or not — could be subject to litigation. In the short term, these and other concerns have led two of the eight fertility clinics in Alabama to institute a moratorium on IVF treatments, leaving some couples abandoned mid-cycle.

In an effort to revive IVF, Alabama Gov. Kay Ivey signed a bill to protect doctors from civil suits, but this legislation does not address fundamental issues surrounding the rights of hopeful parents. Ultimately, it will be up to patients, doctors and lawmakers to work together to reach a solution that is both practical and ethically sound.

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