Amidst Ala. IVF uncertainty, Jewish Fertility Foundation works to handle the legal twists

Alabama Supreme Court building. Photo by Michael Barera/Wikipedia

The controversial ruling by the Alabama Supreme Court that stated frozen embryos are to be regarded as children in terms of their legal rights caused a frenzy of activity, from those whose in vitro fertilization procedures suddenly became a legal quagmire, to the Alabama Legislature that found itself cleaning up a predictable mess of unintended consequences.

After the ruling, IVF providers across the state shut down, causing Birmingham’s office of the Jewish Fertility Foundation to scramble to serve the 50 clients who were undergoing the procedure.

The Atlanta-based Foundation offers fertility grant funding, emotional support and education for families — and a lot of support was needed after the ruling came down.

The Feb. 16 ruling stemmed from a wrongful death of a minor lawsuit filed against a Mobile fertility clinic. Three couples who had undergone treatment at the clinic and had successful pregnancies filed suit over a December 2020 incident. As is typical, the couples had extra embryos in frozen storage at the clinic in case they wanted to pursue another pregnancy.

A patient entered the preservation room and opened one of the units, grabbing some embryos. Because the embryos were deep-frozen, the patient was freezer-burned and dropped the embryos, destroying them.

While the trial court said a claim could not be made under the Wrongful Death of a Minor Act, the Supreme Court overturned that opinion on appeal.

Many in the anti-abortion movement subscribe to what is called personhood, which defines human life at the moment of fertilization or conception, which would label all abortion and many forms of birth control as a form of murder.

The ruling that a frozen embryo could be considered a person under law has the implications that discarding or destroying an embryo could be considered murder.

“This decision creates legal chaos with far reaching consequences on medical providers — leaving fertility clinics unsure if they can provide services in Alabama and those who already have embryos frozen in clinics wondering if they will go to jail if they discard them,” said Sheila Katz, CEO of the National Council of Jewish Women.

Another quandry is what to do with extra embryos once a couple is done having children — or if the couple splits up. Would the embryos have to be stored in perpetuity, and who would pay for the storage?

Rather than risk the consequences, clinics across the state shut down, causing major issues for couples whose procedures were in process and dependent on certain timing.

Julie Cohen, who heads the Birmingham office of JFF, said “Before the clinics closed, I had a client reach out about what to do if they closed; I never thought clinics closing would become a reality.  As soon as they started announcing closings, I immediately began receiving text from clients about whether they could travel for treatment.  I am thankful JFF has the partnership clinics in Atlanta, so we were able to help them get appointments quickly.”

She added, “this truly feels like a nightmare and something I never imagined becoming a reality.”

The Foundation is helping with the added expense of having to pursue the procedure in Atlanta. Nationally, NCJW provided an emergency $15,000 grant to help Alabama clients, the first grant from the organization’s Jewish Fund for Abortion Access, which was established after the Dobbs decision.

One issue with Alabama clients going to Atlanta for the procedure is that in some cases, insurance does not cover outside the state.

They also organized an online forum with an Alabama fertility attorney, a similar program is being organized with NCJW for May. There was also a support group meeting for Birmingham clients on March 6.

After the Dobbs decision of 2022, where the U.S. Supreme Court overturned Roe v. Wade and returned the issue of abortion to the states, JFF officials warned that procedures like IVF likely were in danger, because the IVF procedure creates embryos, and many states had passed laws declaring that life begins at conception.

Alabama’s anti-abortion law, though, refers to ending a pregnancy “in utero,” which would allow room for IVF.

The Supreme Court ruling came under heavy criticism by Jewish groups. The Central Conference of American Rabbis, a Reform group, said it was “appalled” by the ruling and noted how “Alabama Chief Justice Tom Parker makes explicit that the Court’s ruling is a religious, not a legal, act.” By extensively quoting Christian theologians, “this ruling is therefore a violation of the First Amendment to the United States Constitution, which prohibits the establishment of a state religion.”

In his argument, Parker summarized “the theologically based view of the sanctity of life adopted by the People of Alabama,” including that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.”

Parker concluded, “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his [sic] glory.”

The CCAR noted the Jewish legal view that personhood is not granted to a fetus or embryo at any stage of a pregnancy, but said that they are not asking for Jewish law to be enshrined in U.S. law, either. “We demand, however, that individuals in this free country be permitted to make their own choice about engaging the use of in vitro fertilization and other reproductive technologies.”

NCJW’s Katz called the Supreme Court decision “wildly outrageous and sets a harmful precedent that violates separation of church and state and will make it nearly impossible for families in Alabama to access fertility treatments such as in-vitro fertilization.”

She added that the Christian references in the opinion were “a clear violation of religious freedom as the Alabama Supreme Court — indeed the Chief Justice — has made clear that it seeks to impose a narrow Christian interpretation of theology on all people in Alabama.”

The NCJW statement noted that Jews in the United States disproportionately rely on IVF, with 17 percent of Jewish women utilizing fertility treatments to get pregnant, as compared to 12.5 percent of the general population. In addition, LGBTQ couples rely on the procedure as a way to start a family.

Rabbi Jen Gubitz wrote in Lilith magazine about her thus-far unsuccessful experiences with IVF, saying “I really wished our embryos were kids. But not because an Alabama judge has decided they are.”

“Jewish tradition understands that life begins when a baby takes a first breath of oxygen, allowing for the soul to enter into its body. We cannot let state or federal legislation determine when life begins, forcing the hegemony of Christian scripture on our wombs or on our dreams,” she wrote.

“Fixing” the problem

The widespread condemnation of the ruling led the Alabama Legislature to scramble to ensure access to IVF, as many who oppose abortion nevertheless favor IVF because the goal is to produce babies.

The Legislature passed SB 159, shielding IVF providers from lawsuits or criminal charges over “death or damage to an embryo.” Governor Kay Ivey signed the bill on March 6, saying “Alabama works to foster a culture of life, and that certainly includes IVF.”

The bill does not rescind the Supreme Court decision, it simply says that one may not be prosecuted over an embryo. However, in 2018, an amendment to the Alabama constitution recognized rights for unborn children, so another round of legal proceedings is possible.

In his concurrence, Parker noted that IVF in the U.S. is unregulated, and in other countries, usually one embryo at a time is made, unlike the multiples made in the U.S. The U.S. should follow that example, he suggested, saying predictions that the court’s ruling would end IVF in the state do “not seem to be well-founded,” though that is what happened when the ruling was issued.

He said the Legislature is free to decide how the IVF industry operates, “provided that it comports with the Alabama Constitution, including the Sanctity of Unborn Life Amendment.”

That uncertainty is making many couples reconsider their procedures in Alabama, said Elana Frank, CEO and founder of JFF. They have spoken with transportation and storage companies with an eye on moving embryos out of Alabama, assuming the clinics would allow it. “Some people still want to move their embryos despite the SB 159 passing,” she said.

Frank said that while the bill is good, and some clinics have already reopened, it isn’t the end of the story, because the personhood issue has not been addressed. Nevertheless, “Some staff members were watching the proceedings via the Alabama State Legislature live stream and became very emotional. One sobbed uncontrollably.”

She said there is concern nationally that other states focusing on personhood laws would have similar issues over IVF.