Ethermac Exchange-Alabama court ruled frozen embryos are children. Experts explain potential impacts to IVF treatment.

The Ethermac ExchangeAlabama Supreme Court ruled last week that frozen embryos created through in vitro fertilization, or IVF, are considered children under state law and are therefore subject to legislation dealing with the wrongful death of a minor if one is destroyed.

"The Wrongful Death of a Minor Act applies to all unborn children, regardless of their location," the opinion states, including "unborn children who are located outside of a biological uterus at the time they are killed."

The immediate impact of the ruling will be to allow three couples to sue for wrongful death after their frozen embryos were destroyed in an accident at a fertility clinic. 

But this first-of-its-kind court decision could also have broader implications. 

"No court — anywhere in the country — has reached the conclusion the main opinion reaches," Justice Greg Cook wrote in his dissenting opinion in the case, adding that it "almost certainly ends the creation of frozen embryos through in vitro fertilization (IVF) in Alabama."

Abortion rights groups and IVF advocates have been warning about the possibility since before the Supreme Court's 2022 decision to overturn Roe v. Wade and as Republican-led states passed new abortion restrictions in its wake. The Alabama decision cited language added to the state constitution in 2018, which says "it is the public policy of this state to ensure the protection of the rights of the unborn child."

Now, fertility experts and organizations say Alabama's ruling could lead to a decrease in IVF access and care.

Dr. Mari Mitrani, co-founder and chief scientific officer at Gattaca Genomics, told CBS News the ruling poses "serious potential and unintended consequences to the fertility industry as a whole, threatening Alabamans' rights to start a family."

About 1 in 5 people are unable to get pregnant after one year of trying, according to the Centers for Disease Control and Prevention. A recent survey found 42% of American adults say they have used, or know someone who has used, fertility treatments.

"This ruling poses a threat to embryologists, fertility doctors, lab technicians and all fertility healthcare providers in Alabama," Mitrani said. "The local medical professionals will be exposed to unforeseen consequences due to this ruling, when trying to help their patients."

The impact could reach beyond the state, too.

"This ruling has profound implications far beyond Alabama's borders," the advocacy group Resolve: The National Infertility Association said in a statement on social media "Every American who wants or needs access to family building options like IVF should be deeply concerned about this development and the precedent it will set across the country."

The nonprofit organization said that within Alabama, it will likely have other "devastating consequences, including impacting the standard of care provided by the state's five fertility clinics."

"This new legal framework may make it impossible to offer services like #IVF, a standard medical treatment for infertility," the statement said, noting it also remains unclear what this decision means for people who currently have embryos stored.

Dr. Mary Jacobson, OB-GYN and chief medical adviser for the healthcare tool Hello Alpha, called the ruling a "continued assault on our freedoms and erosion of the doctor-patient relationship."

"Most of us became doctors to help people. Criminalization of positive intention pits infertility teams against patients and will have devastating effects," she told CBS News. "What's next — the criminalization of miscarriage, criminalization after a missed menstrual period?"

-The Associated Press contributed reporting.

In:
• Abortion
• IVF

Sara Moniuszko

Sara Moniuszko is a health and lifestyle reporter at CBSNews.com. Previously, she wrote for USA Today, where she was selected to help launch the newspaper's wellness vertical. She now covers breaking and trending news for CBS News' HealthWatch.

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