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The Excerpt podcast: Alabama's controversial IVF ruling means that embryos are children

On a special episode of The Excerpt podcast: The ethical and legal issues of IVF, or in vitro fertilization, are complicated. For many, IVF is more than a medical procedure; it's about the profound desire for parenthood. Each year, IVF contributes to around 100,000 births nationwide. In a recent decision, the Alabama Supreme Court described embryos as, "embryonic children...kept alive in a cryogenic nursery.” In other words, frozen embryos are children. Lindsay Heller, an IVF mom and partner at the law firm Fox Rothschild LLP in New Jersey, joins us to discuss how this decision might impact IVF patients and providers across the country.

Hit play on the player below to hear the podcast and follow along with the transcript beneath it.  This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.

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Dana Taylor:

Hello and welcome to The Excerpt. I'm Dana Taylor. Today is Wednesday, February 28th, 2024, and this is a special episode of The Excerpt. For many, IVF or in vitro fertilization is more than a medical procedure. It's about the profound desire for parenthood. Each year, IVF contributes to around 100,000 births nationwide. In a recent decision, the Alabama Supreme Court described embryos as "embryonic children kept alive in a cryogenic nursery."

In other words, frozen embryos are children. The ethical and legal issues of IVF are, well, complicated. Here to shed light on how this decision might impact IVF patients and providers across the country is Lindsay Heller, an IVF, mom and partner at the law firm Fox Rothschild LLP in New Jersey. Thanks for joining me, Lindsay.

Lindsay Heller:

Thank you so much for having me.

Dana Taylor:

Let's start with the ruling and then we can dive into what some of the implications might be. What was the scope of the Alabama Supreme Court decision?

Lindsay Heller:

The scope is based upon wrongful death. Something that many people may not know is the lawsuit was initially brought by patients who had undergone IVF, who had embryos frozen by their IVF facility. Those embryos were kept in a freezer in a hospital. A patient of the hospital got into the facility's area, took the embryos out of the freezer, dropped them on the ground, and they were destroyed. Those patients sued for various civil claims, one of which was wrongful death, and that was their paramount claim.

The secondary claims were in the event that embryos were not determined to be children qualifying under the wrongful death statute. The other claims were related to loss of property, which is what embryos are typically deemed as. The lawsuit was brought to the lower court in Alabama, the appellate division, both of which determined that embryos did not qualify for the wrongful death statute. And ultimately, the Supreme Court overruled those lower court rulings and did declare the embryos as children qualifying under the wrongful death statute.

Dana Taylor:

The IVF opinion from Chief Justice Tom Parker was overtly Christian, overtly religious. He wrote that, "Human life cannot be wrongfully destroyed without incurring the wrath of a holy God." Can we talk about the language here?

Lindsay Heller:

So I read legal opinions day in and day out. It's part of my job. I am a family law attorney partner in our family law department and that's where my focus lies. It's certainly not the norm to see religious commentary in legal decisions. Generally, our courts rely upon precedent, meaning controlling court cases that have come before the decision being made that day and statutory law.

Dana Taylor:

What does that ruling mean for fertility patients in Alabama?

Lindsay Heller:

First and foremost, there are facilities that have paused fertility treatment in Alabama, and that is because those doctors would otherwise potentially be putting themselves at risk for suit of wrongful death, which is a major liability. And doctors are not going to risk their license to continue in this treatment where they could be sued for wrongful death should an embryo not come to fruition of a birth of a child. The embryo not coming to fruition to the birth of a child can happen in various ways.

And if it's the patient's choice to destroy their embryo, could they also be qualifying as a defendant in a wrongful death action? So that's where the pausing of treatment comes in. Where I think the road can travel and to be the doom and gloom side of it, quite frankly, as a family lawyer, when I hear rights of a child, which is how the embryos are now applied under the wrongful death statute, I hear what happens when the child is born and what rights are put upon parents by the birth of the child and what rights are put upon the child.

Dana Taylor:

So what does this mean for the clinics who are providing IVF services today?

Lindsay Heller:

For the clinics providing IVF services today in Alabama right now, they need to be talking to their professional liability insurance carriers about what their liability is and whether they're willing to bear the risk of continuing treatment.

Understanding that an embryo could not survive based on a failed implantation, are they then the liable person under a wrongful death statute because they perform the implantation procedure, and understanding that a mistake could happen such as a device failure in the facility. And are they authorized to allow their patients the option to destroy embryos, or are they then somehow liable for the patients electing that decision by them offering that option?

Dana Taylor:

Some fertility patients decide to freeze eggs or embryos following a cancer diagnosis. That's because both eggs and testes may be damaged following chemotherapy and radiation treatment. That's one example. But how do you see cancer patients in Alabama being affected by this court decision?

Lindsay Heller:

That is a very poignant question. IVF is used for all sorts of reasons, whether it's fertility treatment or a cancer patient who's trying to preserve their ability to reproduce before undergoing chemotherapy, and also for somebody who carries a genetic disorder to determine whether the embryo is healthy to implant so as to not pass on that genetic disorder. All of those people are affected by a decision that results in a facility not performing the treatment.

Dana Taylor:

Well, the state of Alabama has decided that embryos are children. This ties back to what you were speaking about before. Obviously, a parent can legally cross state lines with their kids. Can IVF patients legally move their embryos from Alabama to another state?

Lindsay Heller:

If both parents agree under family law in New Jersey, I'm not born in Alabama, I just want to be clear, but in New Jersey and New York where I practice, both parents who are in agreement can move their children wherever they want at any point in time. If parents do not agree to take a child across state lines, they need to seek permission from the court. And that's in my field every day of divorce or unmarried parents to children. So the question arises in the law when there are parents who disagree about whether to move the embryo to another state, right?

That's how our law is made. As an IVF mom, when you start the IVF process, you fill out forms with your facility, and those forms have various questions. And two main aspects of those questions are what happens in the event of divorce and what happens in the event of death. And to the best of my recollection, the forms do not include what happens if one parent wants to move the embryo to another state and the other parent doesn't, because that would be a dispute and disputes are resolved by our laws.

Dana Taylor:

Well, how might this ruling affect access to contraception since some types work by blocking implantation in the uterus?

Lindsay Heller:

So the idea of how this decision could transfer to contraception is extremely interesting. The way that the Alabama court framed application of a child under the statute for wrongful death was including children outside of the womb. So that would be the embryo that has yet to be implanted, and that's how the embryo was created. From reading the decision, there was no distinguishing factor made over an embryo or a frozen egg or frozen sperm, meaning the two pieces of the puzzle that come together to create the embryo.

And so you have to wonder, where does the definition of a child stop and where does the definition of a child continue in perpetuity? And could that include an issue with contraception if the pieces of the embryo live inside of us or outside of the womb by definition? Where does the definition stop? And for that, I'm not sure yet.

Dana Taylor:

Today these embryos need a uterus to gestate, but that may not be the case in the future. With this decision, is there a chance that even without consent, frozen embryos that exist today will be around long after their biological parents are gone?

Lindsay Heller:

I believe the answer to that is absolutely. So a couple of questions and points come to mind based on this decision and that question. If a doctor could face wrongful death or a facility could face a wrongful death suit because of a loss of an embryo, you would imagine that so too can a patient who chooses to destroy the embryo. And therefore, there will not be allowed the destruction of embryos under this decision. If that is true, a question arises, who pays for the storage in perpetuity?

Is it the patient that has to undertake this cost for the foreseeable future forever? Is the non-implantation of an embryo considered to be abuse and neglect, which are standards by which child protective services can remove children from a home? We also have the situation that I discussed earlier about a parent receiving an embryo in a divorce against the other parent's wish. Does that parent then have the ability to implant into somebody else? And to be super doom and gloom and super futuristic about it, every day if you turn on the news you hear AI, AI, AI.

I don't want to get crazy conspiracy theory. It's not who I am. But is there a world in which these embryos can be created in some other means? I don't know. We have to look into where we're going with science. A lot of questions to be had here, which is why for me personally in my practice, I'm making sure, and as I have been for quite some time, that parties are including their embryos and their desire of what to do with them in their prenuptial agreements, even if they haven't been created yet, to maintain some form of control, as well as in their divorce agreements.

Dana Taylor:

Well, Lindsay, I've read that there are as many as one million frozen embryos stored across the country. Just to be clear, is there anything in the Alabama decision granting embryos legal right to be born?

Lindsay Heller:

The decision relates to wrongful death, assigning the rights of a child. However, if the embryo has the right of a child, if parents are allowed to bring suit as though the embryo was a born child, then I think you would have to look to specific states' rulings about the right to be born. So I think it's too farfetched to say right now every embryo has a right to be born. But I'm looking into the future about assigning the rights to the child. This is a case of first impression. A case of first impression means a state has never issued a law on this similar fact pattern.

And so there's no precedent to look at to follow, and they can pull from different cases and draw comparisons of precedent in their state, and they can look to other states and see what other states are doing. If another case a first impression is brought for all the things that we've been discussing, such as implanting an embryo on a parent who's willing while another parent is not, child support, child custody, abuse and neglect, and everything else that a child has, somebody could ask about assume the right to be born. But this case did not imply that at this time.

Dana Taylor:

The national legal battle is far from over. What should we expect to see next?

Lindsay Heller:

I think we're seeing it already. So we're seeing candidates on both sides of the aisle talking about this decision. We're seeing Alabama State Legislature attempting to create laws to protect IVF, and my understanding is that it's politicians of all different backgrounds who are supporting that measure. This is an election year. People should vote based on whatever standpoint they take if they want to be heard on this topic because it's going to continue to be talked about as the months pass.

Dana Taylor:

Lindsay, thank you so much for being on The Excerpt.

Lindsay Heller:

Thank you so much for having me. I'm very honored that you had me and happy to share my time with you this morning.

Dana Taylor:

Thanks to our senior producer Shannon Rae Green and Bradley Glanzrock for their production assistance. Our executive producer is Laura Beatty. Let us know what you think of this episode by sending a note to podcasts@usatoday.com. Thanks for listening. I'm Dana Taylor. Taylor Wilson will be back tomorrow morning with another episode of The Excerpt.

This article originally appeared on USA TODAY: The Excerpt podcast: Alabama's IVF ruling means embryos are children