Alabama IVF patients left in limbo after court’s embryo ruling: ‘You're making something that was already complicated even harder’

A recent ruling by Alabama’s Supreme Court that frozen embryos are legally considered “children” under state law has left many women and families in Alabama in limbo with unanswered questions, as several fertility providers in the state have paused in vitro fertilization (IVF) services.

Yahoo News spoke to women in Alabama, who were at various stages of the IVF journey when the court issued its controversial ruling, about the questions and concerns they’re now facing and what this decision means for them.

‘Making something that was already complicated even harder’

Kendall Diebold, a 32-year-old nurse practitioner from Hanceville, Ala., and her husband have been trying to get pregnant for about a year. After receiving an “unexplained infertility” diagnosis, Diebold began pursuing fertility treatments at the University of Alabama at Birmingham (UAB), starting with multiple rounds of letrozole — a medication that decreases the amount of estrogen the body makes in order to increase the chances of getting pregnant — followed by intrauterine insemination, or IUI.

Diebold had just learned that her second round of IUI had been unsuccessful right around the time the Alabama Supreme Court issued its ruling regarding embryos as children under state law. She and her husband had been planning to begin the IVF process at UAB in about a month — that is, until the university’s fertility clinic announced it was pausing IVF services following the court’s decision.

“The whole infertility world is an incredibly hard, isolating and emotional world,” Diebold said. “Then you're just adding this [ruling] and you're making something that was already complicated even harder.”

Diebold said she and her husband are now considering the possibility of pursuing fertility treatments in a neighboring state such as Georgia or Tennessee, which would add additional financial and logistical burdens to an already stressful situation.

“It is absolutely overwhelming and devastating to know that we have to make a choice about how badly we want this,” she said.

‘I'm a little concerned … that I'm not going to be able to get rid of that embryo’

One of the biggest questions surrounding the court’s decision is whether IVF patients or providers could face legal penalties — including, potentially, criminal charges — for destroying unused embryos. Though Alabama Attorney General Steve Marshall has stated that the court’s ruling will not be used to prosecute IVF patients or providers, there’s still a lot of uncertainty regarding who could be held liable for the destruction of embryos. It is common during the IVF process to create more embryos than needed to increase the chances of a successful pregnancy. If embryos are found to have genetic defects or patients don’t wish to have any more children, they are frequently discarded.

That uncertainty has created concerns for Alabama residents like Taylor Cater Durham, who has one frozen embryo left over following two unsuccessful rounds of IVF — a process she described as “full of heartbreak” — with her ex-husband.

Cater Durham said that she and her ex-husband just paid $850 in January to keep their embryo frozen for one year after their clinic had offered the first year of storage for free.

“I wasn’t ready to let that [embryo] go,” she told Yahoo News. “There’s an emotional attachment there to your embryo after you’ve been through so much.”

But now, Cater Durham said she’s worried that the court’s decision may mean she won’t be able to destroy the embryo even if she wants to.

“I'm a little concerned that if I do decide to get remarried and get pregnant on my own, or I have to do IVF again, that I'm not going to be able to get rid of that embryo,” she said. “I'm going to have to either use it, or store it for the rest of my life.”

What about embryos destroyed out of state?

The question of criminal liability is also a concern for Elizabeth Sellers, a Montgomery, Ala.-based communications director who is currently undergoing IVF treatments in Atlanta.

Sellers and her husband had decided to pursue IVF out of state before the Alabama Supreme Court issued its recent ruling on embryos — they chose a clinic in Georgia that suited their financial needs and came recommended by people they knew. Still, Sellers told Yahoo News that she’s concerned about potential consequences if her embryos are destroyed outside of Alabama.

“If I had frozen embryos in another state, would the state of Alabama potentially hold me and my husband criminally or civilly responsible for destroying or doing something with those embryos that they deem inappropriate?” she asked.

A bipartisan effort to protect IVF

Despite all the uncertainty she’s currently facing, Diebold said she is heartened by the way elected officials from across the political spectrum have spoken out in favor of protecting IVF in the wake of the Alabama court’s decision.

President Biden called the Alabama Supreme Court ruling “outrageous” and is sending Health and Human Services Secretary Xavier Becerra to the state on Tuesday to discuss the ruling with IVF patients and providers. Meanwhile, in a social media post, former President Donald Trump called on the Alabama legislature to “act quickly to find an immediate solution to preserve the availability of IVF in Alabama.”

Since the ruling was announced, both Democrats and Republicans in the Alabama legislature have put forth multiple proposals to protect IVF at the state level.

On the Democratic side, Alabama House minority leader Anthony Daniels recently proposed legislation that aims to establish 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.”

On the Republican side, State Sen. Tim Melson is set to introduce a bill this week that would clarify that an embryo is not human life until it is implanted inside a uterus. On Friday, Republican Gov. Kay Ivey put her support behind the measure.

IVF advocates have planned an “advocacy day” on Wednesday at the Alabama state capitol to coincide with an expected public hearing on Melson’s bill before the Senate Health Committee. Diebold said she plans to attend.

“There's such little agreement in the world of politics these days, and I have seen people from all [political sides] come out and say ‘This is not OK,’ and ‘This should not be happening,’” Diebold said.