Women undergoing IVF in Alabama face uncertainty amid legal battle

From left to right: Cody Carnley of Crenshaw County, Alabama; Carrie McNair of Mobile; Veronica Wehby-Upchurch of Birmingham and Lindsey Shaw of Birmingham hold signs at a rally in support of legislation to protect in vitro fertilization on Feb. 28, 2024 in Montgomery, Alabama. (Brian Lyman/Alabama Reflector)

Jamie Heard’s journey through in vitro fertilization has been fraught with emotional highs and lows.

Uncertainty has been a big factor.

Just days after starting her second IVF cycle in February, she learned that an Alabama Supreme Court decision classifying frozen embryos as children had suspended all treatments at her clinic. The Alabama Legislature moved quickly to pass a bill during the session to protect IVF.

A few months later, she’s back on track for pregnancy, but uncertainty remains.

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The Supreme Court’s ruling stemmed from a lawsuit brought by parents against a Mobile clinic where frozen embryos had been destroyed without authorization in 2020. The ruling declared the embryos were children and that parents could seek civil damages for their destruction under an 1872 state law.

Clinics shut down operations. Amid an outcry, the Alabama Legislature approved a law giving IVF programs immunity from criminal and civil liability in delivering IVF programs.

Following the law’s passage, the IVF clinics moved to dismiss the plaintiffs’ lawsuit. The parents who initially sued filed a new motion asking the Circuit Court of Mobile County to declare the state’s IVF immunity statutes unconstitutional, saying that the law infringes upon their rights to raise children; equal protection under the law and trial by jury, and retroactively affects their rights, which is prohibited under the state constitution. The court had not ruled on the request as of Wednesday.

Trip Smalley, an attorney for the plaintiffs, declined to comment on Wednesday.

The fear of legal and medical uncertainty has cast a shadow over the Heard family’s future. An embryo transfer is scheduled for September, but Heard fears that another ruling could prevent that from happening. She said she and her husband wanted to plan for a pregnancy in 2025, but the uncertainty has forced them to move their timeline up, only adding to the stress.

“We were hoping to maybe have some more time to kind of save up more for that, but now we’re just like, ‘let’s go ahead and just do the transfer, and we can figure out the finances on the back end of that,’” Heard said.

A message was left with the plaintiff’s lawyer who requested the Supreme Court review the law.

“How long do we have? When are things going to stop again? Will we be able to do more transfers in the future? What does that mean for our remaining embryos? We have all of these questions that have been lingering since that bill was signed into law,” Heard said.

The Alabama Legislature’s law gave fertility clinics civil and criminal immunity while performing IVF. But the Republican-controlled Legislature rejected arguments from Democrats that the Alabama Supreme Court’s reliance on a 2018 “Sanctity of Life” amendment — which says that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children,including the right to life” — would require a constitutional amendment to protect IVF.

Amid criticisms that the law was merely a “Band-Aid fix,” Republican legislators signaled they would study the issue further. Rep. Terri Collins, R-Decatur, who sponsored the legislation and Alabama’s near-total abortion ban in 2019, said Wednesday over text message they expect to have “a more formal task force” established within a month or so.

Months after court ruling, commission to study IVF issues in Alabama hasn’t formed

Lochrane Chase, diagnosed with polycystic ovary syndrome (PCOS), has suffered had multiple miscarriages and a series of medical treatments to help her pregnancy efforts. The Supreme Court ruling in February added a new layer of stress, she said. Chase, who is now 18 weeks pregnant, was in the middle of treatment, and stopping it could be hard on her body, so she began asking for out-of-state referrals.

“Coupled with back-to-back miscarriages after 18 months of trying to conceive, and the government is now getting involved. I mean, it was incredibly devastating,” Chase said.

Corinn O’Brien, another patient and head of Fight for Alabama Families, an organization advocating for IVF access in Alabama, said that she knows at least five women who got pregnant through IVF since the Legislature passed the immunity law. Still, she also said more work is needed to ensure long-term access.

“People are actually expanding their families. More life in the world because of this, but we still have a lot of work to do. We still need to make sure families have access to this and we are not there yet,” she said.

The legal and political uncertainties have added significant stress to an already difficult process.

“It forces you to want to just do things immediately. We feel like we’re being forced to make these decisions quickly and promptly simply because we don’t know what does lie in the future for IVF,” Heard said​.

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