Since Roe v Wade was overturned in 2022, ending the constitutional right to an abortion, the United States has seen a consistent rollback of reproductive rights across many of its 50 states.

The latest has come in the form of a first-of-its-kind decision, in which the Alabama supreme court ruled that frozen embryos are “children”, setting a worrying precedent for the introduction of personhood amendments that would grant foetuses and embryos the same rights as living, breathing children.

Alabama already had a total ban on abortion at all stages of pregnancy, but this particular ruling came in response to two lawsuits against a fertility clinic in Mobile, AL. Three families had their embryos, which were being stored ahead of in vitro fertilisation (IVF), accidentally destroyed and asked the court to reconsider whether they were protected under the state’s Wrongful Death Of A Minor Act, which allows parents of a deceased child to recover punitive damages. The Alabama supreme court sided with the couples, finding that the fertility clinic’s failure to secure its storage area, where the frozen embryos were being “kept alive in a cryogenic nursery while they awaited implantation”, was a negligent act resulting in the death of the embryos.

The supreme court is the final court of review in Alabama and the decision cannot be appealed, which has sparked major concerns. In a statement, the White House called the ruling “exactly the type of chaos that we expected when the supreme court overturned Roe v Wade and paved the way for politicians to dictate some of the most personal decisions families can make” and Democrats in the Alabama state House of Representatives introduced a bill in response that would declare “any fertilised human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purposes under state law”.

Not just another attack on reproductive rights, the decision could also have devastating implications for people seeking IVF or other assisted reproductive technology treatments. The ruling does not ban or restrict IVF, but the decision may cause confusion about whether some aspects of IVF are legal under Alabama law.

“So far, three IVF providers in Alabama have suspended IVF services,” Tess Cosad, fertility expert and co-founder at Béa Fertility, tells Stylist. “Ultimately, they’re doing this to protect both their patients and clinicians from prosecution should anything happen to an embryo that compromises it.”

But this is not just a one-off: Cosad is clear that other states in the US will soon follow suit. 

“The overturning of Roe v Wade in June 2022 saw the US supreme court declare that the right to having an abortion was no longer protected as a constitutional right, which affected how embryos are viewed under certain state laws,” she explains. Therefore, with federal protection of abortion no longer in place, each state can make its own laws around abortion and decide when life begins – which ultimately means that anti-abortion bills can be used to determine whether an embryo outside of a uterus can be given the same rights as a child. 

According to Sandy Christiansen, embryologist and fertility coach at Béa Fertility, the ruling will make already difficult fertility journeys even harder.

“The ruling doesn’t ban IVF, but it does cause serious confusion about how embryos can be handled and stored,” she says. “Not all IVF embryos will develop and grow in the laboratory and not all embryos will be used during treatment or in future treatments. The law grants legal personhood to embryos, creating confusion about what happens if they stop developing or need to be destroyed following a procedure.”

Ultimately, the ruling means many families in Alabama who are going through IVF will have to stop, and those who decide to push on will fear legal ramifications. It means fertility clinics are being forced to make heartbreaking decisions about whether to continue or to pause IVF procedures altogether. As a result, fewer people will seek fertility treatment, and those who do will find it harder to access it.

Christiansen adds: “IVF is hard enough as it is. It’s emotionally fraught, physically demanding and financially challenging. Now, Alabama is making it criminal. It’s nothing short of a terrifying development in the policing of women’s bodies in the US.”

Images: Getty