Alabama’s groundbreaking ruling on February 16th has sparked yet another nationwide debate on women’s rights related to fertility, except this time, the effects land a particularly hard blow on LGBTQ+ families. The Alabama Supreme Court ruled that frozen embryos have the legal status of personhood, meaning that destroying them is tantamount to murdering an unborn child. IVF treatment centers in the state already started suspending their operations and canceling IVF procedures. So what does this all mean, why is it so important, and how does it affect queer families?

First, let’s briefly look at what IVF is.

IVF stands for in-vitro fertilization. The process can be rather taxing on the patient going through it, but it’s a relatively straightforward and common procedure that’s been around since the 1970s. Egg retrieval and IVF are mostly used to help older women with fertility issues, women with endometriosis or damaged or blocked fallopian tubes, cancer patients before they undergo chemotherapy, couples suffering from male infertility, and same-sex couples.

It starts with egg retrieval. A common misconception about female fertility is that a woman only loses one egg each menstrual cycle. In actuality, a woman typically ovulates one egg each cycle – meaning only one egg grows to the level of maturity it requires to be fertilized by a sperm cell – but she’ll lose about 1,000 immature eggs along with that one mature egg. Unlike males who continually produce sperm throughout their lifetimes, females are born with all the eggs they’ll ever have, which is why women experience trouble with fertility as they get closer to menopause when they finally run out of functioning eggs.

When a woman begins egg retrieval in the IVF process, she’s given medications to inject into her stomach every day for two weeks. These drugs will stimulate more eggs in that cohort of 1,000 or so that are preparing to drop, allowing several to fully mature. Once the eggs are mature enough, her doctor will remove the eggs in an outpatient surgical procedure.

Back in the lab, the doctor will inject – or inseminate – each egg with a sperm cell in a process called fertilization. Those fertilized eggs then grow to become embryos that can be implanted back into the woman to further develop into a fetus.

Here’s the key part.

A lot of IVF patients choose to do genetic testing on their fertilized embryos to discover which ones are viable (i.e. which ones don’t have some fatal genetic abnormality that will prevent them from surviving long enough to even make it to birth) and to distinguish ones that may have inherited a genetic disorder or have other types of chromosomal abnormalities. It’s the patient’s call, but oftentimes, IVF patients choose to keep only the genetically normal embryos for implantation. The other embryos get discarded.

Even still, if the IVF patient chooses to freeze embryos for future implantation, there’s a 95% chance any one of the frozen embryos will survive the later thaw, which necessarily means there’s a 5% chance that it won’t. Other accidental or unforeseeable things can happen as well at the storage facility where the embryos are frozen or awaiting implantation that could cause the embryo to be damaged or destroyed.

Enter LePage v. The Center for Reproductive Medicine, P.C. 

The plaintiffs in this case were three couples who each had frozen embryos stored at the Center for Reproductive Medicine’s fertility clinic. The frozen storage area was supposed to be secure at all times, but a patient managed to wander into the storage area through an unsecured door. The patient removed several of the frozen embryos from their storage area, but the subzero temperatures freeze-burned the patient’s hand, resulting in them dropping the embryos on the floor and destroying them. Those destroyed embryos belonged to the plaintiffs.

In a series of legal hearings, the plaintiffs sued the reproductive center for the wrongful death of those embryos under Alabama’s Wrongful Death of a Minor Act.  That law, which has been on the books since 1876 and has gone through a handful of updates until its current version from 2022, permits a parent of a deceased child to sue a person or a business that causes the death of their child, either by negligence, a wrongful act, or a failure to act where there was a duty to do so.

The plaintiffs initially lost their case because the trial court determined frozen embryos do not meet the statutory definition of a “person” or a “child.” However, on appeal, the Alabama Supreme Court reversed the lower court’s decision. The Alabama Supreme Court court specifically addressed the issue of “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” (LePage, 3). The court’s answer? “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.” Id.

What does this mean, practically?

According to the Alabama Supreme Court’s interpretation of the state’s Wrongful Death of a Minor Act – which, again, is an Alabama-specific law that is not imputed to other states, but which may act as a model to other state legislatures – a fertilized egg is a child, under the law.

Why have IVF providers in the state started canceling treatments? Because if anything were to happen to those embryos resulting in their destruction, while in storage at a fertility clinic or as clinicians prepare for and perform embryo implantations, they could be liable for the wrongful death of each of those embryos as an unborn child.

How does this decision disproportionately affect LGBTQ+ couples in Alabama?

Understandably, this decision and its effects are pretty dramatic blows for everyone in the state who is seeking help with growing their family. Same-sex couples, however, are much more limited in how they can become parents. Same-sex couples rely heavily on IVF to produce biological children. Female-female couples require IVF with donor sperm, and male-male couples often choose surrogacy, which still requires the surrogate female to undergo IVF. For LGBTQ+ couples looking to have children without IVF, the other common option they may choose is adoption, which presents its own challenges in some places.

So what can we expect moving forward?

The national reaction to this decision demonstrates that getting rid of IVF is a pretty hot-button issue that isn’t very popular overall. But, it depends. Very conservative state legislatures may choose to implement similar laws in other states across the country. Or states with existing laws may have their own laws challenged by other plaintiffs suing fertility clinics that may have negligently destroyed an embryo. Time will tell. But as laws around the country relating to women’s fertility and pregnancy are becoming more and more restrictive, one can only hope we, as a nation, will find a way back to middle ground.

What are your thoughts about all of this? Do you think this decision will have any ripple effects in your community or your state? Do you agree or disagree with the court's interpretation of the law? Why or why not? Comment below!

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If you’re interested in learning more about LGBTQ+ couples’ experiences with IVF, surrogacy, and related fertility issues, Sapphic Society’s got a great selection of nonfiction books on those very topics. Check out the collection below!