Alabama hospitals and fertility clinics continue to react to the Alabama Supreme Court’s recent ruling that frozen embryos can be considered children under state law.

When the court made its decision Friday, Feb. 16, it began to raise concerns about how it could affect in vitro fertilization (IVF). Just days after the Court’s decision was made public, three Alabama medical facilities pushed the pause button on IVF procedures.

The University of Alabama at Birmingham (UAB) Division of Reproductive Endocrinology and Infertility was the first to react. On Wednesday, Feb. 21, the health system made the announcement it would pause its IVF program. The UAB statement read:

“The UAB Division of Reproductive Endocrinology and Infertility has paused in vitro fertilization (IVF) treatments as it evaluates the Alabama Supreme Court’s decision that a cryopreserved embryo is a human being. 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. 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.”

On Thursday, Feb. 22, Mobile Infirmary and The Center for Reproductive Medicine announced they would pause IVF.

“Mobile Infirmary, an affiliate of Infirmary Health, announce today that in vitro fertilization (IVF) procedures are paused following the recent Alabama Supreme Court decision. Effective Feb. 24, 2024, the Center for Reproductive Medicine at Mobile Infirmary is pausing IVF treatments to prepare embryos for transfer," a statement said.

In a statement, Mark Nix, president and chief executive officer of Infirmary Health stated, “The recent 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.”

The Alabama Fertility Specialists, a clinic located in Mountain Brook, posted a statement on its Facebook page Thursday, Feb. 22 stating:

“We have had the impossibly difficult decision to hold new IVF treatments due to the legal risks to our clinic and our embryologists.

“We are contacting patients that will be affected today to find solutions for them, and we are 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 our strongest tools. Check back in later today for links to advocacy opportunities.”

The clinic went on to say it will not close and will continue to fight for their patients and families in Alabama.

The Alabama Supreme Court case stems from an incident that occurred in Mobile. Three couples filed a wrongful death suit against The Center for Reproductive Medicine and Mobile Infirmary Medical Center after a patient at Mobile Infirmary Hospital entered the Center’s fertility clinic through an unsecured doorway in 2020.

According to the court documents, “The patient then entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.”

The lawsuits asserted claims under Alabama’s Wrongful Death of a Minor Act.

In court documents, Justice Jay Mitchell said:

“This Court has long held that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act (6-5-391, Ala. Code 1975), a statute that allows parents of a deceased child to recover punitive damages for their child’s death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”

Alabama House Minority Leader Anthony Daniels released a statement Wednesday, Feb. 21 regarding the ruling:

“The recent Alabama Supreme Court ruling that the frozen embryos utilized in in vitro fertilization (IVF) are “children” is one more egregious and harmful assault on reproductive health care in Alabama. This ill-advised ruling will almost certainly put fertility clinics out of business which will negatively impact couples who have chosen this fertility option to begin or expand their family.”

Sen. Tim Melson, R-Florence, chair of the Alabama Senate’s Healthcare Committee told the Alabama Reflector Thursday morning he plans to file a bill that would clarify that embryos are not viable until they are implanted in the uterus, a clarification that would in turn provide protections for IVF programs.

“We all know that conception is a big argument that it’s life,” Melson said. “I won’t argue that point, but it’s not going to form into a life until it’s put into the uterus.”

After Melson’s comments Thursday, Daniels along with fellow Democrats Prince Chestnut, Curtis Travis, Ontario Tillman and Pebblin Warren sponsored Alabama House Bill 225.

“Relating to unborn children; to provide that 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 purpose under state law.”

Section two of the bill states “the act shall become effective immediately” if the bill is passed and signed into law.

UAB, Mobile Infirmary and AFS did not comment on how long the pause in the IVF programs will last.