The Daily - The Alabama Ruling That Could Stop Families From Having Kids

Episode Date: February 26, 2024

 A surprise ruling from the Alabama Supreme Court has halted fertility treatments across the state and sent a shock wave through the world of reproductive health.Azeen Ghorayshi, who covers sex, gender, and science for The Times, explains what the court case means for reproductive health and a patient in Alabama explains what it is like navigating the fallout.Guests: Azeen Ghorayshi, who covers sex, gender and science for The New York Times; and Meghan S. Cole, who is in the final stages of IVF treatment in Alabama.Background reading: Alabama ruled frozen embryos are children, raising questions about fertility care.Fertility clinics are routinely sued by patients for errors that destroy embryos, as happened in Alabama. An effort to define them legally as “unborn children” has raised the stakes.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the story of how a surprise ruling from the Alabama Supreme Court halted fertility treatments across the state and sent a shockwave through the world of reproductive health. I spoke with my colleague, Azeem Gureshi, about the court case itself and to a patient in Alabama about what it's like to navigate the fallout. It's Monday, February 26th.

I mean, this Alabama ruling really seemed to come almost out of nowhere for a lot of us. And in a world where we frequently track court cases and we expect them on a certain date, this didn't fall into that category. It was a genuine legal surprise. So tell us the story behind this case. Yeah. So the actual incident at the center of this case happened in December 2020 at a fertility clinic in Mobile, Alabama. Basically, a person ended up wandering into the storage room of this fertility clinic, which happened to be located in a hospital. They opened a tank where frozen embryos were stored, pulled out a vial, and dropped them on the ground. and those embryos were destroyed. These frozen embryos belonged to at least three couples that we know of who were undergoing IVF, or in vitro fertilization.

To try to have a baby. To try to have a baby. And so this is a pretty unusual-sounding situation. We don't know why a person was able to get into this room, why they stuck their hand in a tank that was holding frozen embryos at negative 360 degrees Fahrenheit. But the couples in the end filed suit against the fertility clinic and the hospital in which the fertility clinic was located. And what should we know about the lawsuit that they filed?

So the lawsuit that they filed, I mean, the most important thing to know is that they ended up filing a wrongful death claim. This law in Alabama, the wrongful death of a minor law, was established in 1872, and they argued that the loss of their embryos should fall under that law. Most people don't think of an embryo in a fertility clinic freezer as a baby or as a minor. You mentioned that law. So what's the argument made by these three couples for why that should be the case? So in one of the couple's complaints,

they actually described the embryos as, quote, cryopreserved embryonic human beings. They argued that that storage room where the tanks were being held should be considered the same as a daycare facility, which, you know, daycare facilities are protected under state regulations and are required to be safe, secure, and closely guarded. And they said, you know, small children, including embryos, cannot protect themselves. So they were really making the argument that the embryos that were destroyed in this incident

were essentially their babies and had been killed. I'm curious what we know about the motives of these plaintiffs for using this language. It feels like language we tend to associate with social and religious conservatives who have been trying to redefine when life begins. Do we know if the plaintiffs here are part of that movement and do they share its goal? I mean, the fact of the matter is we don't know very much about these plaintiffs. We can't speak to their motivations. I tried to reach out to them and did not hear back.

You know, accidents happen in fertility clinics. Often in those cases, patients are either settling with the clinics outside of court or they're bringing negligence cases to be compensated for physical, emotional damages. In this case, we see a completely different strategy. We see these couples bringing a wrongful death suit, and they're using very specific language of personhood movement in the United States has been seeking to define life as beginning at the very earliest stages in an effort to overturn the right to abortion. And that happened, you know, in 2022 when we saw the fall of Roe v. Wade. And once that ruling fell, a lot of people were wondering, what does this mean for IVF? Right. Worrying that basically a case like this, a case like what these plaintiffs are arguing, might come along, might gain subtraction. Yeah. It's the logical conclusion to that personhood argument. Okay. So let's turn to

what happens to this lawsuit and how we get to this very consequential ruling. So two lower trial courts in Alabama actually rejected that wrongful deaths argument. They said that these embryos should not be considered people. That brought this to Alabama Supreme Court, and they made the opposite ruling. They said that actually these embryos should be considered children under Alabama state law. And how does the Alabama Supreme Court explain why it came to that conclusion? So the main judge who issued the opinion wrote that the text of the wrongful death of a minor act is sweeping and unqualified. It applies to all children born and unborn without limitation.

And we got even more insight into the court's thinking from some of the concurring opinions. One of the justices wrote, even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory. So they're very much taking the position that, according to the Bible, these embryos should be considered human life. Right. And according to Alabama law. And according to Alabama law, yes. So what the justices of the Alabama Supreme Court are saying in this ruling, just to be very clear, is that a fertilized embryo, even outside a uterus, outside the womb,

is a full-fledged life with all the legal protections of a baby, a minor, protections of a baby, a minor, and therefore they're resetting the clock on the entire idea of when life starts to its very earliest conceivable moment. So this is a narrow ruling. This applies to the three couples in this case whose embryos were destroyed. But it sets a huge and quite scary precedent for anyone who is undergoing IVF, anyone who works in the fertility industry in Alabama, who is working with these embryos that are suddenly considered children. Just explain that. Accidents happen in fertility clinics. Sometimes an embryo sticks to the side of the pipette. Sometimes problems happen with shipping. Sometimes

a biopsy is taken for genetic testing and it goes wrong. I mean, there are many, many ways that these embryos can be damaged as a result of going through this process. And suddenly this ruling just raises the stakes tremendously and opens up a whole suite of new questions about how fertility care can even be provided in the state of Alabama. Right, because suddenly everyone involved in the chain of custody of an embryo involved in IVF could very logically worry that they could end up being entangled in a wrongful death lawsuit for something that, based on what you're saying, might be just a routine accidental end of an embryo's

existence. Yes. Okay, so practically speaking, on the ground, what end up being the repercussions of that ruling in Alabama? Pretty much immediately after this ruling came out, there was, I would say, complete pandemonium. You have fertility clinics that are suddenly looking at basically all their processes for how they do things, wondering what their liability is going to be now that all of

these embryos could be considered children under Alabama state law. And then there are the people who are currently in the middle of undergoing fertility treatment who don't know whether they can proceed. You know, people who had retrievals scheduled to retrieve eggs from their body, people who are waiting to have embryos transferred to see if they will actually implant. And so this puts all fertility treatment in Alabama into limbo. I think people just don't know what's going to happen next? Last week, not long after the Alabama ruling, we got an email from a woman in Birmingham. Her name is Megan Cole. She told us she's a 31-year-old lawyer

and that she's in the final stages of IVF treatment. On the day she wrote us, last Wednesday, she said her embryos were scheduled to be implanted in a surrogate just two days later. So I called her and asked her to tell us her story. Why don't you just start just kind of at the beginning about, you know, your experience and what it's been like to watch this thing come down and how you kind of fit into this and how it's affecting what I understand from your email to be like a pretty in-process situation that you're in with your surrogate. Sure. So back in high school, I was diagnosed with a super rare blood disorder. So between the disorder and the medications that I'm on, I can't safely carry my own pregnancy. Wouldn't be safe for me, wouldn't be safe for the baby.

And that was something that was devastating and something that I had to get over and realize okay like it is what it is and maybe I'm just not meant to you know have my own child and then I learned about surrogacy and so that kind of gave me hope which obviously that entails going through IVF. that entails going through IVF. So last year, I went through two rounds of IVF and we were finally matched with a surrogate back in November. And for two rounds of IVF alone, it cost us around $24,000. And then, you know, when you add surrogacy on top of that, it's going to equal about $250,000 all in. And we are currently scheduled for an embryo transfer on Friday. And so last week, we're chugging along, everything's great. And then I get an email blast and read the opinion and was shocked.

Why were you shocked? Just explain that. I just didn't think that this was even like an issue or a thought. I didn't think that frozen embryos would ever be considered like a living child outside of a uterus. I mean, they're frozen clusters of cells. They can't live outside of the freezer. And so I just, I didn't realize that someone would rule this way. And how quickly did it become a question of your own circumstance? Very quickly.

So after the shock kind of, you know, settled in, then I realized, oh, we have a transfer schedule. Are the clinics going to be kind of paralyzed because they don't know what this ruling means for them? And are they going to continue with normal business? So that was obviously a concern. And then today, actually, the University of Alabama at Birmingham, UAB, issued a notice saying that they're pausing all IVF. So at that point, I really got scared.

So we're talking to you like at 4 p.m. Eastern time on Wednesday. And what exactly is the state of communication you're having with the clinic? You know, I know my clinic is inundated with calls right now. And so I haven't been able to get in touch with them to kind of see what the status is. But, you know, we're scheduled for Friday and I'm just going to assume that it's going forward until I hear otherwise.

So basically, the biggest day of your life is ambiguous at this moment. Like, will your pregnancy begin? Will I be having a kid in nine months or will I not be? We've wanted a child for so long, and now that we're almost here, you know, and... I'm sorry, I don't want to, like, tear up, but to think that a Supreme Court decision could now take away my ability to fulfill my dream of having a child. My own child is like really upsetting to me. So talk a little bit about your understanding of how this decision might affect you. And is there a universe where it doesn't

affect you? Right, right. I think there is a situation where I'm not affected. I mean, it's not like the court said you can't do IVF and you can't do any transfers. And so I think there is a universe and I think maybe I am currently in that universe where everything does go forward on Friday, but yeah, I'm in limbo right now and it's really scary. Well, why don't we just keep checking in with you and we can just kind of keep,

keep trying to understand where things stand. Okay, that sounds good. Thank you so much for calling. Okay, bye. Bye. We'll be right back. So, Azeen, we just spoke with a woman, Meg, who is in the final phase of the IVF process with a surrogate. Her transfer was scheduled for Friday, February 23rd. And when we spoke with her, she said the entire process is now uncertain.

She has no idea if it's going to move forward. I'm curious how many people in Alabama are in that kind of situation now and what their options are if they're involved in IVF in the state. So here's what we know. There are at least five IVF clinics in the state of Alabama. They performed at least 1,200 IVF procedures in 2021. Since the ruling came out, pretty much in rapid succession, we started hearing from clinics that said they were shutting down some or all of their IVF procedures. It started with the University of Alabama at Birmingham. Which we should say, by the way, Meg, when she heard about that, was really spooked. Yep. And then just yesterday, we found out that the Center for Reproductive Medicine in Mobile, so that's the fertility clinic at the center of this suit, is also shutting down operations. And a third clinic has also announced that as well. So now there are three major fertility clinics in Alabama saying they aren't moving forward with IVF treatments.

They're basically just shutting the whole thing down. They're shutting the whole thing down. Because they fear liability. Because they fear liability. Because all of a sudden, these embryos that they're handling could be considered people under state law. Well, so if you're somebody trying to do IVF in Alabama, you have your fertilized eggs frozen in one of these clinics that have paused their work, what can you do?

What should you do? I mean, I think people are sort of panicking and wondering how they can possibly move forward. I mean, one option would be get your embryos out of the state. Ship them out. Ship them out. Ship them out to another fertility clinic out of state that can proceed with your transfers. But my colleague just reported that one of the biggest embryo shipping companies has just said that they, too, don't want to accept the liability that this new ruling imposes on them. In case they were to be involved in damaging an embryo.

In case something happens in the process of shipping, could they be held liable under this interpretation of the wrongful death statute in Alabama? So everyone is spooked. You know, what could this mean for their personal responsibility in handling these embryos? So it feels safe to say that in Alabama, this ruling has pretty much brought the entire IVF world, or most of it, to a grinding halt. people outside of Alabama is. What are the chances that a ruling like the one that happened there could happen elsewhere in the country, especially, as you explained earlier, Azeen, in a world where there isn't Roe v. Wade, which had been viewed as a kind of legal buffer against efforts to go after something like IVF? So my colleague Sarah and I actually spoke with a head of a fertility clinic in Iowa who said, I feel for the patients and the fertility providers

in the state of Alabama. I do not think that this is going to be limited to that state. She's in a state where there is a six-week abortion ban on the books. It's being challenged right now. But I think fertility providers across the country are worried about what this could possibly mean for them in states that have made it clear that they want to ban abortion. There is, of course, an irony here, which is that we think of the personhood debate as primarily being around abortion and ending pregnancies. IVF is about creating pregnancy. It's about creating life, babies. So it would seem like something that social and religious conservatives would embrace, not try to restrict. Yeah. I mean, what you just described is the split that we're currently seeing play out in

the Republican Party. Many Republicans are saying that they oppose this decision. They're trying to distance themselves from it. I mean, you have Mike Pence, who went through IVF with his wife, has been outspoken about it, saying that, you know, IVF needs to be protected. Mike Pence being a very prominent social conservative. Yes. We have legislators even in the state of Alabama saying that IVF needs to be protected in that state. And, you know, they know that most Americans, including Republicans, support IVF for the reason that you said, it's helping people start families. But is a tension that's playing out in the conservative world. It's really unclear as of now whether IVF will become the same kind of battleground in this

country that abortion has become. We have good reason to think that it won't because of the popularity of IVF. But what we do know is that that extreme point of view has prevailed in Alabama, and that has very real consequences for fertility patients in that state. Azeem, thank you very much. Thanks, Michael. Hey, this is Megan. Hey, Megan, it's Michael Barbaro. How are you? Hey, how are you?

I'm good. So, as promised, we wanted to check back in with you. Yes. And it's now Friday afternoon. This was the day that your transfer was scheduled to happen. So I wonder if you can just catch us up on what's happened since we last spoke with you a couple days ago. Sure. So later on that night, like at 7 o'clock, I got a response, but it was kind of like a lawyer response. And very much of, we don't really know yet what's going on.

We'll be in touch as we figure things out. So after I got that, I just sent an email directly to my doctor and I said, you got to shoot me straight. What's going on? Is the transfer going forward? And then about 20 minutes after I sent that email, I saw my clinic's number pop up on my phone and instantly knew that it was going to be bad news. And our doctor said, I'm so sorry, but it has to be canceled. I instantly broke down in tears. I don't think I've ever cried that hard in my life. cried that hard in my life. My husband is very outgoing and very talkative and could talk to anyone. And he was basically silent for 20, 30 minutes. He just didn't know what to say and was trying to process this decision and the cancellation of the transfer that we've been waiting for

for over a year. And then I called our surrogate and had to break the news to her. The person who'd been taking hormone medications for the last three weeks and dealing with that while also dealing, you know, with her own family and had to break that news. And she was obviously devastated as well. After you processed this, after you got off the phone with the surrogate. What was going through your head? It was, how are we going to make this happen? How are we going to get these embryos out of this state and have our transfer move forward? But as of now, we are unable to move our embryos out of the state because the clinics are worried that there might be destruction of an embryo, you know, obviously through the process of transporting them out of state. And that could open them up to liability. It could open us up to liability. So that was not an option either. us up to liability. So that was not an option either. So your clinic is saying you can't use your embryos because of this ruling. And it's also saying because of this ruling, you can't move your embryos. It's basically, for now, shutting down your options to conceive a child.

I mean, the only option would be for me to go through an IVF cycle out of state, my third IVF cycle, get those embryos frozen, genetically tested again. The whole process. I mean, redo the whole process, which would cost us another $30,000. And that wouldn't be something that we would be able to do immediately. I mean, that would take at least another year. Right. Which every, every, when you're in this process, every day seems like a year. We've been waiting and waiting

to have a child and we were on the cusp. And so the thought of having to wait, you know, another year or even another six months is, is really hard for us. hard for us. How did you end up spending this day, Friday, the day where you thought that you were going to begin a journey towards having a child and instead you didn't because of this ruling? I mean, I spoke with my mom, my dad, and my sister all today. One thing that my sister said, you know, is she's been angry as well, and she said it feels like a death in the family. Like, we were all excited to have the possibility that a child would be coming into our family. And she said, you know, it feels like a death.

Do you feel that way? I do in the sense of it feels like a death of our dream to become parents. You know, we were almost there. And so now that dream has, it seems less obtainable at this moment. Hmm. less obtainable at this moment. Well, Megan, thank you for sharing all this with us. Of course.

In our first conversation and now in this second one, and I wish you and your husband the very best. Yep, no problem. Thank you. Over the weekend, both Democratic and Republican lawmakers in Alabama, including its conservative governor, Kay Ivey, said they would consider legislation to protect IVF treatments from the court's ruling. But so far, it's unclear when such legislation would be voted on and whether there's enough support for it to pass. We'll be right back. Here's what else you need to know today.

I was just informed that we got double the number of votes that has ever been received in the great state of South Carolina. So that's pretty good. In his latest victory in the Republican primary, great state of South Carolina. So that's pretty good. So it's a record time. In his latest victory in the Republican primary, Donald Trump soundly defeated Nikki Haley, his only remaining opponent, in her home state of South Carolina by 20 percentage points. The outcome, Haley's fourth straight defeat to Trump, solidified Trump's status as the party's de facto nominee. I just want to say that I have never seen the Republican Party so unified as it is right now.

Never been like this. And a Manhattan jury has found that the leaders of the NRA, And a Manhattan jury has found that the leaders of the NRA, the country's most powerful gun rights group, engaged in a years-long pattern of financial misconduct and corruption. The verdict amounted to a public rebuke of the organization's longtime CEO, Wayne LaPierre, who resigned from the NRA last month. During the trial, it was revealed that LaPierre had used NRA funds to pay for millions of dollars in personal expenses, including high-end clothing, yacht rides, and luxury flights for himself and his family. Thank you. contains original music by Marian Lozano, Diane Wong, and Dan Powell,

and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsberg of Wunderlich. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.