Birmingham resident Hannah Miles has been trying to have a baby for more than three years, fighting obstacles like endometriosis, diminished ovarian reserve, and cancer treatment that affected her husband’s sperm. The couple is already nearly $40,000 into the in vitro fertilization process after one failed transfer into her uterus in January. Their last embryo is scheduled to be transferred on March 19.
She messaged her IVF nurse through tears earlier this week, asking if she should continue the medication injections that cost $800 per vial out of pocket to keep her endometriosis from flaring up.
Her clinic, Alabama Fertility, indicated her transfer can move forward, she said, but it has paused any new treatments or transfers because of the Feb. 16 ruling from the Alabama Supreme Court declaring that frozen embryos are equivalent to human children. The clinic made a post on its Facebook page Thursday addressed to patients.
That means Miles won’t have another shot at egg retrieval for the foreseeable future in Alabama if this one doesn’t work.
IVF requires the collection of as many eggs as possible that are then fertilized. Some that would not make it after implantation in the uterus because of abnormalities or other health factors are destroyed. That could leave clinics open to prosecution as a result of the new ruling.
“It’s heartbreaking, and it’s something you don’t think you’ll ever have to face,” Miles, 29, said. “Now we’re here, and we’re paying $20,000 a cycle in the hopes that maybe one day we’ll get a baby, and now we’re facing not even being able to pay exorbitant amounts of money to be able to have a baby.”
The 8-1 decision, authored by Justice Jay Mitchell, has already led more clinics in Alabama to pause IVF treatments, including the state’s largest hospital, the University of Alabama Birmingham, for fear of prosecution. Companies have also decided to stop shipping frozen embryos to and from Alabama, according to RESOLVE: The National Infertility Association.
The ruling came as a shock to many Americans, but experts say it is the culmination of more than 40 years of efforts to grant “personhood” status to embryos and fetuses.
Sen. Tim Melson, chairman of the Alabama Senate Healthcare Committee, plans to introduce a bill that would protect IVF by saying an embryo should be considered a potential life but not a human life unless and until it is implanted in the uterus and a viable pregnancy can be detected. As of Friday, Feb. 23, Melson’s legislation hadn’t been introduced yet.
Miles and a few friends are hoping to make it to the Alabama Capitol on Feb. 28 for an advocacy day and to testify at a public hearing on a similar bill introduced by Democrats, House Bill 225, if it’s being heard.
“We have to do something about it,” Miles said. “It feels like there’s not much we can do, but we have to do something.”
Previous ‘personhood’ efforts failed
It’s unclear whether the bill will conflict with the concurring opinion authored by Chief Justice Tom Parker, who wrote, “… any legislative (or executive) act that contravenes the sanctity of unborn life is potentially subject to a constitutional challenge under the Alabama Constitution.”
Parker has long been active in the anti-abortion rights space, and his opinion quoted extensively from the Bible, using religious reasoning for the decision — something he has often done during his time on the court, according to ProPublica reporting from 2014. He worked at former chief justice Roy Moore’s think tank, the Foundation for Moral Law, which promotes the idea that the Bible should be the basis of the law in America and championed the “personhood” movement in Alabama. Parker also served as Moore’s spokesperson during the controversy over a Ten Commandments monument that ultimately got Moore ousted from his position as a judge in 2003.
Margaret Marsh, historian and professor at Rutgers University, said many anti-abortion groups have opposed the fertility treatment since the world’s first IVF baby was born in 1978, calling it a “morally abhorrent” technology and successfully lobbying against federal funding for research using human embryos.
“Their goal was to try to make sure that the American people would think of embryos as people,” Marsh said.
In 1983, the U.S. Senate held a vote on the passage of a constitutional amendment to declare that human life begins at conception, but the measure was defeated. In the following years, at least 38 states passed “fetal homicide” laws that allowed prosecution for the death of a fetus as a result of domestic violence or other assault, and some included the option to prosecute a pregnant person for using drugs that caused the death of a fetus.
But attempts to go further at the state level largely haven’t been successful, Marsh pointed out. In 2011, an initiative on the ballot in Mississippi that would have granted full personhood status to fertilized eggs failed by a vote of 57% to 42% after doctors and abortion rights groups raised concerns about the consequences it could have for birth control, IVF, and other reproductive care. A similar measure in North Dakota failed in 2014 by an even wider margin, 64% to 35%.
“If these things are put to a vote, for the most part, the voters have turned them down, and I think it is likely because they are thinking of either themselves needing infertility treatment, or their friends, or their sisters,” Marsh said. “So they may be anti-abortion, but I don’t think they see assisted reproductive technology in the same way they see being pregnant and having an abortion.”
Legislation weighed in other statehouses
Several state legislatures have considered bills this year that relate to “fetal personhood” laws, including Kansas, Florida, and Idaho. A bill in Idaho to change the words “embryo” and “fetus” in state law to “preborn children” was pulled back earlier in the session when a doctor from a local IVF clinic raised concerns about its implications for fertility treatments.
Kansas’ bill specifies that the embryo must be “in utero,” but it would allow pregnant people to seek child support at any stage of gestation. Representatives for Planned Parenthood in Kansas said it’s a tactic to open the door for anti-abortion laws, two years after voters soundly rejected an attempt to amend the constitution to ban abortion in the state.
In Florida, the legislature is considering a bill that would add a fetus to those who could be counted in a wrongful death lawsuit. An amendment would establish that the fetus is a person from conception, according to Florida Phoenix.
The state with one of the most successful personhood laws is Georgia, where abortion is banned after six weeks, and any embryo or fetus with detectable cardiac activity can be claimed as a dependent on a resident’s tax returns.
Shana Gadarian, a political scientist professor at Syracuse University who studies public opinion, said despite the support at the legislative level for such laws, she’s not sure this latest development out of Alabama will be politically popular with the majority of the country.
“IVF is a pretty common procedure now, and if someone directly hasn’t gone through it, it is relatively common among groups that are more likely to be conservative,” Gadarian said. “These are procedures people think of as important in their own lives and are probably separable from abortion.”
Polling from the Pew Research Center in 2023 found that 42% of adults in the U.S. say they or someone they know has used fertility treatments, and a majority of Democrats and Republicans surveyed thought insurance should cover the treatments. Less than half of the country has mandated insurance coverage for IVF, according to Stateline.
Whatever happens next, Miles said she’s ready to contact her representatives at the local, state, and federal levels to change the laws, including helping to elect Democrat Greg Griffin, who’s running to replace Parker as chief justice of the Alabama Supreme Court.
“Until IVF is protected at the federal level, we are all at risk of having something like this happen,” Miles said. “There is no one angrier at the world than someone going through IVF. They’ve pissed off the wrong people.”
This article was published by States Newsroom.
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