Frozen Embryos Are Children? Reproductive Care in Peril After Alabama Supreme Court Ruling

NERMEEN SHAIKH: Alabama’s largest hospital has paused in vitro fertilization treatments as it works to assess the impact of a ruling by the Alabama Supreme Court that said frozen embryos should be considered children. In a statement, the University of Alabama at Birmingham Health System said, quote, “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.”

The ruling stems from appeals cases brought by three couples whose frozen embryos at a reproductive clinic in Mobile, Alabama, were accidentally destroyed when a hospital patient dropped them on the floor. In a 7-to-2 decision, the Alabama Supreme Court ruled the couples can now sue the clinic for wrongful death.

AMY GOODMAN: The ruling partly hinged on anti-abortion language added to the Alabama Constitution in 2018 that says the state recognizes the, quote, “rights of the unborn child,” unquote. In his opinion, Alabama Chief Justice Tom Parker cited biblical verse a number of times, writing, quote, “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” unquote.

The ruling has sent shockwaves through the world of reproductive medicine as legal experts and infertility specialists take measure of the potential effects on access to IVF and other fertility treatments.

For more, we’re joined by Barbara Collura, the president and chief executive of RESOLVE: The National Infertility Association, which represents the interests of infertility patients. She’s joining us from Scottsdale, Arizona. And joining us from Atlanta, Georgia, is Angela Granger. She underwent IVF treatment in Alabama in 2020, delivered her baby in 2021. Before the Alabama Supreme Court ruling, she had considered returning to Alabama for future IVF rounds to get pregnant again.

We welcome you both to Democracy Now! Barbara Collura, let’s begin with you. Can you respond to this ruling and what it means for people all over the country?

BARBARA COLLURA: It’s a shocking ruling. It is something that is going to terrify people all over the country that this might happen in their state, certainly in Alabama. Quite honestly, we have been predicting that something like this might happen, hoping it never would, but we are getting closer and closer to this. Certainly with the overturning of Roe v. Wade, we saw many more states try and attempt to declare a fertilized egg a person. And now here we have it. It’s devastating news for people who are, quite honestly, trying to have children and build their family.

NERMEEN SHAIKH: Angela Granger, could you also respond to the ruling? And talk about your own experience with IVF treatment in Alabama.

ANGELA GRANGER: Yeah, honestly, it was just very shocking. It was like it just took the wind out of me. I did IVF in Alabama at a fertility clinic in Birmingham, and I went there specifically for the doctor, who is amazing and highly, highly looked upon as like one of the best in Alabama. And I would have loved to go back to her, but it just seems that that is just kind of a scary decision right now, and it’s not something that I trust — I just don’t trust what’s going on to be able to go back at this point.

AMY GOODMAN: Now, the largest Alabama hospital has now suspended IVF treatment. Was that the place where you got your treatment, Angela?

ANGELA GRANGER: No, it wasn’t. I went to Atlanta — sorry, Alabama Fertility Specialists. But it is — everybody, like, they’re not kind of responding to anything right now, you know. So, it just seems that even all my friends that have frozen embryos and whatnot, their clinics are like, “Hey, this is a day-by-day thing, and we will let you know when we have a statement.” And it just seems that there’s a lot of question and a lot of confusion right now.

NERMEEN SHAIKH: Barbara, could you explain exactly how IVF treatments work and how this ruling will impact all those seeking that treatment in Alabama?

BARBARA COLLURA: Sure. The goal of IVF is a healthy baby. And they do that by stimulating the woman’s ovaries. They do a surgical procedure where they retrieve eggs. Those eggs are put in a Petri dish in a laboratory. They then are fertilized with sperm. The laboratory personnel watch that Petri dish over the next few days. After three days, they assess the embryos. After five days, they assess those embryos. If the embryos at day five look to be viable, they will transfer one embryo to the woman. And we don’t know if that is going to implant or not. A lot of people think that doctors can implant embryos. They cannot. They are simply transferred to the uterus.

What happens to those other embryos that were in the Petri dish? They are cryopreserved or frozen. That is the standard procedure. Embryos have been known to be cryopreserved and result in live births after 20 years of being frozen. So this is really modern science, but the state-of-the-art care. So, those frozen embryos are future attempts for that person to try at pregnancy. Those embryos are thawed one at a time, and then they are transferred again to the woman.

Look, if we are talking about an embryo as a person or as a child, can we actually even freeze them? That is a question that we have. We don’t even know if some of the other procedures that are typically part of the IVF process will be able to be done, given that the status of an embryo is now a child in the state of Alabama.

AMY GOODMAN: And isn’t it true that it’s must less effective for a person to freeze their eggs than to freeze a fertilized egg?

BARBARA COLLURA: Well, it can be done, certainly. It’s just far more cumbersome. It’s not as effective, as you said. And it’s going to cost more. So, if we retrieve those eggs from the woman and we freeze the eggs — so there’s no Petri dish, no fertilization — and then we thaw one egg at a time and try and fertilize that, wait those five days, see what happened, and then start over, it seems incredibly cumbersome. I can’t even imagine what it will look like in the laboratory to do IVF this way. And it’s certainly going to cost more, and it’s going to put women through more.

Keep in mind, for every one of these transfers — and I’m sure that your guest who’s on can tell you this — you’re put on medication — sometimes it’s injectables, sometimes it’s a pill — and you are preparing your body for that embryo. You want a pregnancy. You want the highest chance of pregnancy. So, if you’re trying to do this over the course of every one of those frozen eggs being thawed and fertilized, I can’t even imagine what that’s going to put people through.

NERMEEN SHAIKH: Well, I’d like to go to a response to the ruling from a U.N. ambassador and Republican presidential hopeful who was speaking on an interview with NBC News on Wednesday and was asked about the ruling.

NIKKI HALEY: Embryos, to me, are babies. So, I mean —

ALI VITALI: Even those created through IVF?

NIKKI HALEY: I mean, I had artificial insemination.

ALI VITALI: Yeah.

NIKKI HALEY: That’s how I had my son. So, when you look at — you know, one thing is to have — to save sperm or to save eggs. But when you talk about an embryo, you are talking about — to me, that’s a life. And so, I do see where that’s coming from when they talk about that.

NERMEEN SHAIKH: So, that was Nikki Haley, a Republican presidential hopeful, speaking on NBC News Wednesday night. Barbara, your response to what she said?

BARBARA COLLURA: Well, we completely disagree with the Alabama Supreme Court ruling. It flies in the face of science. IVF has been practiced in the United States since 1981. A microscopic group of cells — we can’t even see an embryo. You need a microscope to see it. We do not look at that as a person, as a child or as a baby. It has the potential for life. And just like in natural conception, not every embryo results in a live birth. That’s just not how our bodies work. That’s not how biology works. So, to equate that a frozen embryo, microscopic, is a baby, we just — we don’t agree with that. And the science does not agree with that, either.

AMY GOODMAN: I want to turn to White House Press Secretary Karine Jean-Pierre responding to a question about the ruling Tuesday.

PRESS SECRETARY KARINE JEAN–PIERRE: This is exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make. All across the country, women are being forced to grapple with the devastating consequences of action by Republican elected officials, from undermining access to reproductive care and emergency care to threatening access to contraception. And as a reminder, this is the same state whose attorney general threatened to prosecute people who helped women travel out of state to seek the care they need. The president — this president and this vice president will continue to fight to protect access to reproductive healthcare and call on Congress to restore the protections of Roe v. Wade in federal law for all women in every state.

AMY GOODMAN: So, that’s Karine Jean-Pierre, the White House press secretary. Barbara Collura, if you can respond to her and also talk about how this affects the LGBTQ+ community?

BARBARA COLLURA: Well, when the overturning of Roe v. Wade happened in 2022, we were extremely concerned about how it might impact our community. Remember, these are people who are trying to build their family. And we have been fighting for many, many years attempts at the state level to declare a fertilized egg a person. So this is not new for us. This is something that we have seen over and over and over again. However, those attempts have failed. Defining a fertilized egg a person has not taken hold. We call it “embryo personhood.” And yet we were extremely concerned that now the floodgates, if you will, would be opened after the Dobbs decision. So, this is something that I hate to say we predicted and we thought might happen.

And I also just want to mention that for people who are going through infertility or people who are going through IVF process, their embryos are incredibly precious to them. This is the potential of life. This is the potential of their child. And we treat that extremely seriously. So I don’t want to discount how people feel about their embryos and how attached they are. There’s an emotional attachment. Yet we all know, who do this, that that is not a living human being. It has the potential for life.

Your question about the LGBTQ community, so, if you are in a same-sex relationship and you want to be a parent, you have options, whether that be through adoption or through medical assistance. And so, impacting the community, well, if you’re a same-sex male couple, you’re going to need to do IVF and have a surrogate; if you’re a same-sex female couple, you could try IVF. You might do artificial insemination. There are a number of possible ways.

But, certainly, the IVF process impacts a lot of people, including those with cancer. You can freeze your sperm and egg and embryos before you go through a cancer treatment or other medically induced procedure that could impact your fertility. So, please understand this impacts a very wide group of individuals.

NERMEEN SHAIKH: Barbara, could you explain? Do you see this as part of a broader attack to restrict reproductive rights? And also, are you concerned that other states might follow suit?

BARBARA COLLURA: Well, I’m going to start with your second question. We absolutely are concerned that other states are going to follow suit. We have seen states get right up to the edge of this and try for this. I now believe that they’re going to look at this as a precedent. They’re going to look at their own statutes and make sure that they’re airtight, that embryos are included in these potential wrongful death statutes. And I am absolutely convinced we’re going to see legislative attempts to define what a fertilized egg is.

This is about defining when life begins, to answer your first question. This is kind of the holy grail. We talk about pregnancy. We talk about an embryo in the womb. But we have embryos outside of the uterus. And what is their status? This has been what the anti-choice movement has been wanting to do and to define very, very clearly that this is life, that this is a living human being. And we just know that this is going to dramatically impact the care for people who want to have children and who need this medical treatment to be a parent.

AMY GOODMAN: I wanted to go back to Justice Jay Mitchell’s majority opinion, quoting the Bible repeatedly, saying, quote, “We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: ‘Before I formed you in the womb I knew you, Before you were born I sanctified you.’ Jeremiah 1:5.”

I want to put this question to Angela Granger. You’re a single mom. You went to Alabama. Do you think you would have your son today if this ruling took effect before you did your IVF? And talk about single moms by choice, nontraditional families — that are becoming traditional families, because there are so many, whether we’re talking about single moms, single parents, the LGBTQ community — what this is doing to families in America.

ANGELA GRANGER: Yeah, I — excuse me — I strongly believe my son would not be here. I would not have gone to Alabama, had this ruling happened, and I would have had to find another way.

Like many in my community dealing with IVF, I’m a single mom by choice, meaning I used donor’s sperm in order to conceive my son. But I also dealt with infertility. So I kind of had a foot in both communities. And the reality is, is there’s so much trauma we go through before getting to IVF, that deals with loss and grief and surgeries and all kinds of things. And so, for them to now tell us that what we have been working so hard towards — sorry — is something that now we might be negligent or be charged for murder or something is — it is so offensive. And it just adds more trauma to the trauma we’re already going through needing to do IVF.

Being a single mom by choice, one vial of one milliliter of sperm can cost upwards now, with shipping, over $2,000. So, when we go to do IVF, we want to freeze embryos for siblings. That is the whole point, if we are lucky enough to have enough embryos to freeze, because those that deal with infertility are begging God for one or two embryos that come out of maybe even 30 eggs that are retrieved.

So, what is so baffling to me is that the people that are making these laws and, you know, forcing them on us are people that don’t understand what we’ve been through, what infertility means, what being a single mom by choice means, or a part of the LGBTQ. We have no other choice, and now you’re taking that choice away from us.

AMY GOODMAN: Angela Granger, we want to thank you so much for being with us. She underwent IVF treatment in Alabama in 2020, delivered her baby boy in 2021. Barbara Collura is president of RESOLVE.

When we come back, two former members of Malcolm X’s security team reveal details of their entrapment and imprisonment by New York police just days before Malcolm’s assassination 59 years ago this week. We’ll speak with civil rights attorneys Ben Crump and Flint Taylor. Stay with us.

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AMY GOODMAN: Metropolitan Opera’s soprano singer Brittany Olivia Logan, singing last night at the Shabazz Center at a commemoration marking the 59th anniversary of the assassination of Malcolm X.