In Vitro Fertilization: What the Alabama Supreme Court Decision Could Mean for Kentucky
Blog Post | 112 KY. L. J. ONLINE | March 26, 2024
In Vitro Fertilization: What the Alabama Supreme Court Decision Could Mean for Kentucky
By: Elizabeth Joiner, Staff Editor, Vol. 112
In Vitro Fertilization: What the Alabama Supreme Court Decision Could Mean for Kentucky
Following the 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization in which the court held that the Constitution does not confer a right to abortion,[1] some states have enacted their own legislation regulating one’s ability to access abortion procedures. Recently, these controversial abortion laws have given rise to confusion surrounding regulation of the unborn as it relates to alternative fertilization procedures such as In Vitro Fertilization.[2]
As defined by the Mayo Clinic, In Vitro Fertilization (IVF) is “a complex series of procedures” that can be used to treat infertility and lead to a pregnancy.[3] During the process of IVF, mature eggs are collected from ovaries and fertilized by sperm in a lab.[4] Then, a procedure is undergone to place one or more of the fertilized eggs, called embryos, in a uterus, which is where a baby then develops.[5]
On February 16, 2024, the Alabama Supreme Court issued a ruling declaring that embryos created through in vitro fertilization (IVF) should be considered children.[6] This is the first time ever that “the definition of a minor or a child under that statute has been applied to an embryo that exists in a lab.”[7] The case involved three couples that underwent IVF treatment to become pregnant.[8] A dispute arose when the extra embryos being stored through a process called cryo-preservation were damaged in an accident. The destruction of these embryos led the plaintiffs to bring a claim under the Wrongful Death of a Minor Act (an Alabama statute).[9]
The issue on appeal was whether embryos that exist in vitro are “people” or “children” for the purposes of the Wrongful Death of a Minor Act.[10] The Alabama Supreme Court ruled that, yes, frozen embryos can be considered children under state law.[11]
The effects of this decision were immediate. According to a report by the Johns Hopkins Bloomberg School of Public Health:
Within the first week after the ruling, two of the eight fertility clinics in Alabama paused their IVF treatments. One of them is a very large clinic at the University of Alabama at Birmingham Health System. The clinics say that they did so out of real concern of the civil—and potential criminal—liability that their physicians and patients might face. This pause in IVF treatments also means patients who were scheduled to undergo the last part of their IVF treatment—the transfer of embryos into the uterus—have had those procedures canceled for the time being.[12]
While decisions made by the Alabama courts have no binding effect on the laws of other states, there is growing concern that Alabama’s decision could influence similar policy decisions in Kentucky. Kentucky’s abortion laws are nearly identical to Alabama’s, with both states defining life as starting at fertilization.[13] Because Kentucky abortion law mirrors that of Alabama’s, and Kentucky’s laws explicitly state human life begins at fertilization, this could leave the door open for a challenge to IVF for the potential loss or destruction of embryos.[14]
In the wake of the Alabama Supreme Court decision, Kentucky lawmakers on both sides of the political spectrum have sprung into action to introduce bills protecting the IVF process in the state of Kentucky.[15] Senate Bill 301, filed by Sen. Cassie Chambers Armstrong, D-Louisville, would safeguard IVF providers from criminal liability associated with providing fertility services.[16]Additionally, Senate Bill 373, filed by Sen. Whitney Westerfield (a Republican and staunch opponent of abortion) would protect health care providers from liability or prosecution over the loss of a human embryo.[17]
The post-Dobbs era has opened the door to legal regulation of the unborn, giving rise to new concerns surrounding how medical advancements in fertility, such as IVF, will fit into anti-abortion statutory schemes, even in states that have not yet explicitly defined embryos as “persons” for the purposes of anti-abortion laws.
[1]Dobbs v. Jackson Women's Health Organization, 597 U.S. 215, 231 (2022).
[2] Adam Edelman, An uptick in state personhood bills fuels growing fears over IVF, NBC News (Feb. 26, 2024, 4:21 PM), https://www.nbcnews.com/politics/personhood-bills-ivf-restrictions-alabama-rcna140228.
[3] Mayo Clinic Staff, In Vitro Fertilization (IVF), Mayo Clinic (Sept. 01, 2023), https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716.
[4] Id.
[5] Id.
[6] Joshua Sharfstein, The Alabama Supreme Court’s Ruling on Frozen Embryos, Johns Hopkins Bloomberg Sch. of Health (Feb. 27, 2024), https://publichealth.jhu.edu/2024/the-alabama-supreme-courts-ruling-on-frozen-embryos.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Kim Chandler, Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling, AP News (Feb. 21, 2024, 6:57 AM), https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca.
[12] Sharfstein, supra note 7.
[13] Deborah Yetter, Is in vitro fertilization under threat in Kentucky too? Law matching Alabama’s deepens concerns, Kentucky Lantern (Mar. 7, 2024, 5:50 AM), https://kentuckylantern.com/2024/03/07/is-in-vitro-fertilization-under-threat-in-kentucky-too-law-matching-alabamas-deepens-concerns/.
[14] Id.
[15] Id.
[16] CJ Daniels, Kentucky state senator files bill to protect IVF in wake of Alabama Supreme Court decision, WHAS11 (Feb. 27, 2024, 11:23 PM), https://www.whas11.com/article/news/local/cassie-chambers-armstrong-ivf-protection-kentucky-in-vitro-fertilization-alabama-supreme-court/417-7b35de74-9a47-4506-8fb3-29d0a2e2348a.
[17] Yetter, supra note 14.