Alabama Frozen Embryo Ruling Impact on IVF

On Friday, the Alabama Supreme Court ruled that frozen embryos created through in vitro fertilization are people under state law, and that anyone can be held liable for destroying them. In effect, the ruling could heavily impact access to IVF clinics in the state, which may opt to shut down or move to other states out of fear of being held liable for discarding embryos. As Justice Greg Cook wrote in a dissent, the ruling “almost certainly ends the creation of frozen embryos through in vitro fertilization in Alabama.”

Although at least 11 states have introduced “fetal personhood” laws since the Supreme Court struck down Roe v. Wade, the Alabama ruling is the first of its kind, The Washington Post reports. Reproductive-rights advocates are sounding the alarm, pointing out that in a post-Roe landscape, it could set a precedent around how states define personhood — which could carry implications for not only IVF, but access to certain forms of birth control, like IUDs and the morning-after pill.

Hundreds of thousands of patients depend on IVF treatments every year, including people with infertility and same-sex couples. Jennifer Jay Palumbo, a comedian and health and fertility expert, started undergoing IVF treatments after she struggled to conceive. Now an advocate with RESOLVE: The National Infertility Association, Palumbo believes that everyone should have access to treatments like IVF.

We asked Palumbo about her own experience with IVF, why she’s “downright livid” about the Alabama ruling, and what folks can do to advocate for broadening access to the procedure.

POPSUGAR: Just to start off, do you mind talking a bit about your personal experience with IVF?

Jennifer Jay Palumbo: I always say, because I was raised Roman Catholic and Italian, that I never had any inkling that I would have problems getting pregnant. So I was very resistant to the idea that I’d need fertility treatments, whether it was IVF or anything else. But in my case, I seemed to have some egg quality issue.

And the thing is, fertility treatments could not be more pro-family. There are so many misconceptions around IVF, around surrogacy, around fertility treatment in general. In my own experience, it took me several rounds of IVF to have my oldest son, who just turned 12. And most insurances have a dollar cap limit or don’t cover IVF at all. The World Health Organization recognizes infertility as a medical diagnosis, but across the United States, there are only about 20 states that have mandatory coverage. So not only are you dealing with infertility and not knowing if you’re ever going to be able to have children, but you have to ask yourself, how am I even going to afford to try to have a child? It’s a really psychological, emotional strain.

“I think too many people who have never dealt with infertility are controlling the conversation.”

With me, it took three IVFs to produce just one embryo. And that one embryo on my third IVF thankfully stuck. But according to [The Journal of the American Medical Association (JAMA)], it can take on average six IVF cycles to achieve a live birth. Reproductive endocrinologists want to produce as many embryos as possible so you have more options. If you can only afford one IVF, for example — and across the US, it’s on average about $12,500, not including medication — if you are able to produce, say, 10 embryos, you can use those embryos for a frozen embryo transfer, which is easier to afford. So with this ruling in Alabama, the fact that frozen embryos are now in question is a huge concern not just for people in Alabama but across the United States who are using IVF to have children.

I think the thing that’s getting missed is that these frozen embryos are a clump of cells that you can’t see with the naked eye. There is no heartbeat, and one of the biggest points that’s not being covered by the media as far as I can see is: these frozen embryos will never thrive or survive unless they are attached to uterine lining. They’re not sustainable. It’s not the same conversation as an abortion.

PS: In your own words, what does a future America without IVF look like?

JJP: Again, if everyone’s pro-family, I don’t understand why they would cut off access to reproductive technology that would help people have families. I wanted to have a huge family, I really did, but due to my fertility issues, I needed the help of IVF. And I’m still Catholic, I had my kids baptized. In my own personal belief, it’s like, how do we know God doesn’t support giving doctors the gift of this technology to help people who do want families?

I think most of these laws just show the ignorance of lawmakers — that they think they know better than a doctor.

PS: What are organizations like RESOLVE fighting for next?

JJP: We have Federal Advocacy Day once a year, where infertility advocates across the United States talk to lawmakers in their state. It’s a huge day that’s an opportunity for constituents to talk to their lawmakers and explain how important IVF is, how important the adoption tax credit is, how important family-building access is for veterans who maybe had their reproductive organs impacted in the line of duty. This year, it’s on May 14, and I can’t imagine this won’t be one of the issues that comes up.

But no one should wait for Advocacy Day. And I know that people can be very private about their fertility journeys, and at first I was, too. I realized I was judging myself too harshly — I basically felt like I was doing something wrong or was a failure for not being able to get pregnant on my own, and I had to remove that. Again, it really is a medical issue: you could have blocked tubes, a low sperm count, genetic issues that really require medical help just like diabetes or arthritis. If you are someone private, you don’t even have to make a big deal on social media, but you can write a letter to your local lawmaker and say, “Hey, I’m really concerned about this.”

At the end of the day — Sen. Tammy Duckworth said this at one of our Advocacy Days and it really stuck with us — “The people on the Hill work for us.” That’s often forgotten, and the more constituents who tell their representatives, “Hey, this matters,” the better. The more voices, the better. I think too many people who have never dealt with infertility are controlling the conversation.