The recent LePage v. Center for Reproductive Medicine decision by the Supreme Court of Alabama has brought the legal status of embryos to the forefront. The opinion has fueled a renewed interest about the future of in vitro fertilization (IVF). Within days after the ruling, a slew of press detailed the far-reaching implications of this decision for IVF treatment and the future of reproductive autonomy, fetal personhood, and access to care.
The Science:
IVF is a complex and expensive fertility treatment aimed at addressing infertility and preventing the transmission of genetic diseases. The process involves collecting mature eggs, fertilizing them with sperm in a lab, and placing the resulting embryos in the uterus to facilitate pregnancy. Some embryos are cryogenically frozen to preserve these fertilized eggs for future usage. But this is also not a medical procedure and process without risks. According to Mayo Clinic, there is a high risk as some embryo may be destroyed during the freezing process.
The Case:
In December of 2020, a hospital patient at the Mobile Infirmary Medical Center wandered into the Center for Reproductive Medicine in Mobile, Alabama. Having found his way into the reproductive health center via an unsecured door, the patient entered the Center’s cryogenic storage facility and removed several embryos. However, because of the subzero temperatures at which the embryos were stored, the patient’s hands were burned, causing him to drop the embryos on the floor, destroying them. The owners of the destroyed embryos filed suit against the Center and its governing hospital, asserting claims under Alabama’s Wrongful Death of a Minor Act, and, in the alternative, common law negligence claims seeking damages for mental anguish and emotional distress. According to the Alabama Wrongful Death of a Minor Act, the “death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation.” The trial court dismissed these claims, in part, finding that “in vitro embryos . . . do not fit within the definition of a ‘person’ or ‘child.’” On appeal, the Supreme Court of Alabama reversed the dismissal and defined the cryogenically stored embryos as children. In LePage v. Center for Reproductive Medicine, the Supreme Court of Alabama ruled that under the state’s Wrongful Death of a Minor Act, the definition of a “child” included the unborn, irrespective of their location (inside or outside a biological uterus).
Implications for IVF:
The decision by the Alabama Supreme Court has not only shaken many in the legal community, with some seeing in it the anti-abortion perspectives given credence in the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, but it has also taken the health care industry by surprise. The implications of this decision are far reaching, both medically and economically.
Since the decision was handed down in February 2024, several IVF treatment centers have postponed performing IVF procedures because they fear that not doing so will place them in legal jeopardy as lawmakers—both in Alabama and elsewhere—scramble to make sense of the ruling.
This ruling by the court is wrong, however. The legal recognition of embryos as children from the time of conception raises concerns regarding the legal status and protection of early pregnancies. This can potentially influence reproductive liberty by limiting medical procedures such as IVF and, more ominously, criminalizing natural processes.
Embryonic development is a complicated process that begins within twenty-four hours of conception, with rapidly proliferating cells that eventually mature into a fetus by the eighth week. At this stage, the zygote/embryo lacks any traits that can be associated with a child. The choice to equate embryos with children simplifies the complexities of early pregnancy. The fetal phase, which begins nine weeks after conception, indicates the stage of uterine expansion (after implantation). Identifying embryos as children weakens this critical difference, raising questions about the legal repercussions for pregnancies in their earliest and most fragile stages.
The ruling’s impact is particularly worrying when considering the frequency of miscarriages and early pregnancy losses. The Cleveland Clinic states that “[b]etween 10% and 20% of all known pregnancies end in miscarriage. Most miscarriages (80%) happen within the first three months of pregnancy (up to 13 weeks of pregnancy).”
In a recent opinion piece by Dr. Gavin E. Jarvis of Cambridge University, he argues that “Complex biologic processes do not work perfectly all of the time, including human reproduction. A recent re-analysis has concluded that pre-implantation embryo loss is approximately 10–40% and that total loss from fertilization to birth is approximately 40–60%.” If the public accepts the LePage decision, would that imply that approximately 40 to 60% of women who experience miscarriages, a natural and common occurrence in early pregnancy, could potentially be considered to have committed wrongful death of a minor? This point raises critical questions about where the legal responsibility would be drawn – would it extend to the doctor performing the IVF or even the mother in the early stages of pregnancy, creating potential liabilities for these parties in cases of pregnancy loss?
Advocating for reproductive rights involves a sophisticated understanding of the early stages of pregnancy as well as a rejection of the idea that embryos are equivalent to infants. Individuals’ rights to make informed decisions about their bodies and fertility require a legal framework that recognizes the intricacies of reproductive biology. If sustained, the LePage decision may violate human liberty and interfere with medical treatments, underscoring the need for a more educated and nuanced approach.
In addition, this decision will also have a significant influence on the economy. The potential economic consequences of a state losing IVF services are noteworthy. According to Forbes, the average cost for an IVF treatment in 2024 is $15,000 to $20,000. If such legal and political impediments to IVF procedures continue, the result could be reduced business activity and downstream impacts on a state’s economy. There’s a concern that in states without criminal penalties for IVF, the average cost might increase significantly, possibly reaching $50,000. There is also the possibility of aggregation principle, affecting interstate commerce.
The potential loss of IVF services by a state because of legal challenges has the potential to cause substantial disruptions to both interstate commerce and the overall national economy. The implementation of such limitations may result in a decrease in commercial operations for healthcare providers, motivating individuals to pursue IVF treatments in alternative states where services are more readily available. This would lead to increased healthcare expenditures outside of the state, which would have a good influence on the economies of those states and a negative impact on the economy of the state that does not provide IVF. Moreover, the escalated expenses associated with IVF might potentially burden insurance systems and government healthcare programs. Healthcare companies may reassess their investments and operations in IVF unfriendly states, resulting in employment cuts, less tax income, and lower economic activity. The combined impact of these elements has the potential to initiate government action or regulation in order to rectify economic disparities and guarantee widespread availability of vital healthcare services across the country.
The LePage decision presents a substantial threat to reproductive rights. The ramifications extend well beyond the courtroom affecting the lives of millions of people navigating the complexities of pregnancy as well as the health care industry.