Will Alabama’s IVF Mess Go National?

Alabama tried putting a Band-Aid over IVF criminalization, but it might be too late.

Outline of Alabama with three doctors and a red magnifying glass
The Alabama Supreme Court's ruling pushes us closer to normalizing fetal "personhood"—and it affects more than just pregnant people. Austen Risolvato/Rewire News Group illustration

For more on IVF under threat, check out our special report.

In vitro fertilization (IVF) can be life-changing. I know, because it’s the reason I exist.

My parents met later in life, so they knew starting a family might be challenging—and they were right. After three miscarriages, they looked into other options. First, they tried intrauterine insemination (IUI), a procedure in which sperm is placed directly into the uterus using a small catheter; when that didn’t work, they tried IVF, a procedure that involves removing eggs from the ovaries and combining them with sperm in a laboratory dish to create a fertilized embryo that is then transferred back into the uterus in the hopes of a pregnancy. The first round of IVF didn’t work for my parents, but the second one did. Nine months later, I was born.

While this story is personal to me and my family’s experience, it’s not an uncommon one. Among the various kinds of assisted reproductive technology (ART), IVF is the most common. In 2021, there were 413,776 ART cycles performed on 238,126 patients at 453 reporting clinics in the United States, resulting in 97,128 live births, the Centers for Disease Control and Prevention (CDC) reported.

According to the CDC, around 2.3 percent of all infants born in the United States each year are conceived via IVF, IUI, or another form of ART, which means protecting these procedures is essential to ensuring people continue to have the right to grow their families. The recent attacks on IVF have left patients unsure how to proceed, doctors rethinking the way they provide care, and medical students questioning their futures as providers.

Following the unprecedented Alabama Supreme Court ruling that frozen embryos are children—meaning those who handle them can be legally liable—IVF patients and providers have faced weeks of tumult. Services were halted, then resumed again after Gov. Kay Ivey signed a bill in March protecting IVF patients and providers from potential civil or criminal liabilities imposed by the ruling.

This turmoil exacerbated a landscape of general unease in reproductive health care, a large part of which can be attributed to the legal battle over the medication abortion drug mifepristone, which is at the heart of a case currently before the Supreme Court.

Despite the newly signed law and the fact that IVF services have largely resumed in Alabama, the ruling still stands. In the words of Dr. Erinma Ukoha, a fellow with Physicians for Reproductive Health (PRH), “embryos still have the rights of people.”

The repercussions for hopeful parents

Rebecca Matthews, a 37-year-old Alabama mother of two, is no stranger to ART. She and her husband went through a few rounds of IUI with her OB-GYN before moving to a fertility specialist for more rounds of IUI, and then that specialist recommended IVF.

“I did my first round of IVF in 2016: We did our embryo transfer in February and I got pregnant, and we had our son in October,” Matthews said. “From that IVF round, we had done a fresh transfer of one embryo and froze another six. We wanted to have a second child, and in January 2019, we started with those six frozen embryos.”

Matthews said the first two transfers didn’t work, and the next four resulted in miscarriages or early pregnancy loss.

They moved to a new fertility clinic, Alabama Fertility in Birmingham—where, earlier this year, IVF cycles had to be paused after the state supreme court ruling in February. They tried IVF there three more times, and again, all of the embryos resulted in multiple miscarriages. They ultimately used a surrogate to have their daughter in January 2023.

Matthews’ experience is largely a success story: She had two happy, healthy children before IVF was challenged in her state. But she still has one remaining frozen embryo at the Birmingham clinic, and the ruling has put it in jeopardy. She and her husband don’t want more children, but the current IVF tug-of-war in Alabama makes it unclear whether discarding the embryo would put them at risk of breaking the law.

Matthews and her husband have a few options. They can donate the embryo to another person or to the clinic for research. They can pay annually to keep it frozen, which would cost $500 a year, or they can do a transfer, which would cost $3,000.

“Because of the ruling, I feel like time is no longer on our side, and if I don’t make a decision, this may be taken from my hands again,” Matthews said.

The attacks on IVF have galvanized people like Matthews to speak up.

“If I was going through IVF right now, I’d be in my bed depressed,” she said. “I would feel like I had lost my voice altogether. That was when my anger moved to action, and I felt like I had to stand up and do something.”

Betsy Campbell, chief engagement officer at Resolve, a nonprofit national fertility association, reported patients being upset, scared, and feeling like “hope had been ripped from them.”

“I think what people are realizing is how much misinformation there is, and how important it is for patients to share their stories to educate lawmakers, because lawmakers should be on their side, trying to make it easier, not harder to build their families,” Campbell said.

Implications beyond Alabama—and beyond IVF

For many, the murkiness of the IVF laws doesn’t just affect people wanting to get pregnant.

Nicholas Kummer, a second-year student at the University of Alabama at Birmingham’s Heersink School of Medicine, worked at an IVF clinic in New York City before starting medical school as an andrologist. He said he saw a range of IVF circumstances among his patients.

“Some couples realize that they are both carriers of a disease and use genetic testing to have a healthy baby, or will undergo chemo and want security to have a child afterwards, or are preserving their gametes for the right time in the future, or are same-sex, or want to be a single parent,” he said.

“Alabama is my home, and even though it sometimes breaks my heart, there are people I love here who have a right to quality health care.”

– Nicholas Kummer, medical student at the University of Alabama at Birmingham

Matthews said she feels that IVF gets written off as only affecting only privileged women, but that’s not the case (although it is true that treatments can be out of reach, particularly for marginalized groups). Nor does the IVF debate just impact Alabamans: According to Pregnancy Justice, “personhood” language in at least 11 states could be interpreted to affect all laws. On top of that, Louisiana law considers viable embryos to be “juridical persons,” meaning they can’t be destroyed. They can only be transferred out of state, donated to a married couple, or stored forever, according to the Washington Post. (IVF is available in Louisiana, but the Post reported that the major fertility clinics in the state send excess embryos to out-of-state storage facilities, including those that will likely never be used. State lawmakers this week advanced a bill to preserve IVF services, but they declined to take out language describing an embryo as a “biological human being,” which could put doctors at risk of criminal liability.)

“I think it’s really important to note that this is no longer an Alabama problem,” Matthews said. “Now that we know the Republican Party is against protecting IVF on a federal level, everyone from every state has to be contacting their lawmakers and saying, ‘We will not stand for this.’ Something needs to happen.”

ART offers a host of options for people struggling to conceive, and IVF being on the line begs the question: Will other types of care be challenged? Ukoha, who is a maternal fetal medicine fellow at PRH working with high-risk obstetric patients, said she thinks so.

“It’s concerning to see how far this concept of fetal ‘personhood’ is being taken and how much that’s intruding on the rights of individuals to make decisions about their health care,” she said. “People are facing a fear of the unknown, because they don’t know what they will or will not have access to.”

Advocates at Resolve have been worried about how the fight over IVF might play out in other states. Campbell pointed to legislation introduced in Florida and Iowa that would treat embryos as unborn children—further advancing fetal “personhood.” Alabama’s situation, she said, has made one thing clear: IVF opponents want to get rid of it entirely or regulate it to the point that it will no longer be a successful medical treatment.

“We’re very, very concerned about a potential domino effect,” Campbell said.

Ukoha pointed to worsening maternal health outcomes across the country as evidence that the focus is in the wrong place with reproductive health.

“I think it’s shocking that Alabama is focusing on the rights of embryos,” Ukoha said.

The maternal mortality rate is a major issue in the United States, with Black women bearing most of the brunt. According to the CDC, there were 22.3 deaths per 100,000 live births in 2022, which is actually a decrease from 2021 when the rate was 32.9 (the increased rate could be attributed to the pandemic), but higher than in 2019, when the rate was 20.1. The maternal mortality rate for Black women significantly decreased from 69.9 in 2021 to 49.5 in 2022—but because of racism in medicine, they’re still dying at a higher rate than white women, and the rate is returning to pre-COVID pandemic levels.

Although Matthews is optimistic by the way people showed up in her home state to fight for IVF, it’s impossible to know what’s to come. In January, Sens. Tammy Duckworth (D-IL), Patty Murray (D-WA), and U.S. Rep. Susan Wild (D-PA) introduced the Access to Families Building Act, which would federally protect access to IVF and other ART services. Duckworth, who herself had two kids via IVF, had wanted unanimous consent to pass the bill in the Senate, but Sen. Cindy Hyde-Smith (R-MS), blocked it.

“Ultimately, on a federal level, the Republican Party chose to block protection for IVF, and that tells me this is just the beginning,” Matthews said.

‘Very anti-family’

Ukoha said the tactics conservative lawmakers use against IVF are “the same” as the ones they use to restrict abortion. Campbell said she sees the tie between IVF and abortion being the ambiguous and constantly redefined “‘personhood’ language.”

“I believe that these IVF attacks are just more ways to control us,” Matthews said.

Erin Tarnoff is a second-year medical student at UAB and the president of the school’s chapter of Medical Students for Choice, which was founded in 1993 by medical students in response to the “almost complete deficit of abortion education in their medical training,” according to the organization. It has since grown to 287 chapters around the world.

“This state is ‘pro-family,’ but this feels very anti-family to me,” Tarnoff said. “I think they’re taking the abortion ideology so far that they’ve kind of lost the core of the argument.”

Kummer, who’s also a member of UAB’s Medical Students for Choice chapter, said the attacks on IVF are “certainly” connected to attacks on abortion.

“They both stem from the same beliefs on conception,” he said. “It’s unfortunate that solutions to health-care access and cost that could benefit us all don’t garner the same interest and productivity.”

Stringent anti-abortion groups like National Right to Life argue that life begins at conception, and thus IVF embryos are firmly included as “life.”

“The infertility community understands more than anyone else that embryos are not children,” Campbell said. “If they were, everyone would be thrilled.”

Questioning their futures

The laws over IVF have also forced doctors to rethink the way they provide care. In the wake of the Alabama ruling, UAB’s Reproductive Endocrinology and Infertility clinic and Alabama Fertility (where Matthews received her care) paused IVF services until Ivey signed the law protecting them. These are major IVF providers: In 2021, UAB completed 213 cycles resulting in 58 pregnancies, 49 deliveries, and 49 infants born. The same year, Alabama Fertility completed 678 cycles resulting in 224 pregnancies, 173 deliveries, and 189 infants born. The third clinic that paused care, the Center for Reproductive Medicine in Mobile (also a major provider, with 439 cycles resulting in 121 pregnancies, 97 deliveries, and 103 infants born in 2021), was the clinic that was involved in the lawsuit that led to the court decision.

Mobile Infirmary, the other health-care provider involved in the lawsuit, announced last month that it would cease its IVF services at the end of the year.

As much as the ruling impacts patients, it also affects providers.

“I think it affects where people are choosing to go for training, and where people are choosing to go to practice, and that’s going to affect the quality of care and the access to care in states like Alabama,” Ukoha said.

This question is top of mind for future doctors everywhere, but especially for those attending Alabama schools. Along with fellow second-year Heersink students Daniela Muñoz Wilson and Tina Huang, Tarnoff and Kummer traveled to the state house in Montgomery to speak with representatives before Ivey signed the IVF protections bill.

“It was really moving to be there with a lot of IVF providers and families,” Tarnoff said.

Huang spent a gap year between undergrad and medical school working at the New York City IVF clinic Generation Next Fertility, where she became interested in reproductive endocrinology.

“My time there was really eye-opening. I’m Chinese, and I speak Mandarin, so I worked with a lot of Mandarin-speaking patients,” Huang said. “I was constantly translating back and forth between patients and doctors, and being able to help walk patients through the process felt very powerful. IVF can be very intimidating, and it’s so emotionally draining and taxing. But it can also be so beautiful, and I really saw that there.”

Kummer also described his time working at New York City’s New Hope Fertility Center as transformative. Kummer noted the “profound resilience” in this patient population, and how hard it can be to maintain hope amid the emotionally and physically challenging journey that is IVF, but that the joy is insurmountable.

“In our break room we would hang baby pictures that our patients sent us, and I loved hearing my coworkers follow up with patients after they gave birth,” he said.

After he finishes medical school, Kummer hopes to continue to play a role in future parents’ journeys.

“Fertility and reproductive medicine have become intertwined with my dream of becoming a physician,” Kummer said. “It’s much more comfortable to be surrounded by people who share a similar mindset, but the Southeast needs physicians who have the courage to advocate for equity and justice. Alabama is my home, and even though it sometimes breaks my heart, there are people I love here who have a right to quality health care.”

Though Huang isn’t yet sure of her future, if she does move forward with an OB-GYN residency, her end goal would be to become a reproductive endocrinologist and work with IVF patients. But that’s no longer a guaranteed profession.

“I’m worried that this sentiment is going to spread, because other states are looking into it now and trying to come up with their own bills,” Huang said. “My potential future livelihood is being impacted, and it’s making me think, ‘Maybe I shouldn’t even choose this, because I could be persecuted for it ten years down the road.’”