Challenges for In Vitro Fertilization After Alabama’s Decision in LePage v. Center for Reproductive Medicine

Health Equity Health Law
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In February 2024, the Alabama Supreme Court held in LePage v. Center for Reproductive Medicine that Alabama’s Wrongful Death of a Minor Act of 1872, and subsequent interpretive court cases, apply to embryos in storage facilities for purposes of in-vitro fertilization (IVF). In other words, the court found that “unborn children who are located outside of a biological uterus at the time they are killed” should be treated the same as children who already have been born in Alabama for purposes of civil liability.

The case at issue is sympathetic. Several couples sued the Alabama Center for Reproductive Medicine after someone went through the unsecured entrance of the embryo storage facility and damaged their embryos, rendering them unusable. Being unable to sue satisfactorily for these kinds of negligence claims has long been problematic for patients because it is hard to demonstrate legally cognizable harm. In fact, the couples in LePage had already tried to bring other kinds of property and emotional damage claims that were dismissed by the lower court. Thus, their lawyers attempted to argue that they were eligible for compensation under the Act because their embryos were their children – their signed contracts with the Center agreeing to the destruction of remaining embryos after they were finished with IVF, non-withstanding.

Justice Mitchell’s majority opinion argued that for in vitro embryos not to be covered by the 1872 Act, lawmakers would have had to affirmatively craft such an exception (106 years before IVF was possible). Also, a 2022 amendment to the Alabama state Constitution added “it is the public policy of this state to ensure the protection of the rights of the unborn child…” and, as such, Mitchell argued that any legal vagueness should be interpreted in favor of protection for the “unborn.” While Mitchell acknowledged the public policy implications of the ruling (e.g., Justice Cook in his dissent pointed out that it “almost certainly ends the creation of frozen embryos through IVF in Alabama”), Mitchell argued that that was a problem for the Alabama Legislature, not the Court. Also of concern was Chief Justice Parker’s concurrence, in which he abandoned legal precedence and constitutional jurisprudence altogether, citing the Bible and arguing that the Act must encompass extrauterine embryos because “(e)ven before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.” The opinion also made several misstatements about IVF practices.

The Science Behind IVF

This case has the potential to send ripples through IVF practice nationwide. About 2% of babies in the United States are conceived by assisted-reproductive technology (ART) according to the Centers for Disease Control and Prevention (CDC). Nearly 400,000 ART cycles were reported in 2021, resulting in approximately 100,000 live births. First successful in 1978 in the United Kingdom, IVF is now among the most utilized forms of ART.  IVF involves the collection of oocytes (i.e., eggs) from the ovary, creating multiple embryos by fertilization with sperm in vitro (i.e., outside of a living person), and then transferring an embryo or embryos to the uterus to maximize the chance of a healthy pregnancy. The chance of this process resulting in a live birth depends on many things, but ranges from 42% per egg retrieval for individuals younger than 35 years to just 3% per egg retrieval for individuals aged 42 and older. Remaining high-quality embryos can be cryogenically frozen for possible future use, as was the case in LePage, while low-quality embryos unlikely to result in a live birth are immediately disposed.

There are an estimated 1.5 million frozen embryos in existence in the United States. Patients typically pay a yearly fee to keep their embryos in storage, which can range from $500 to more than $1,000. Ultimately, patients must decide whether their embryos will be used for their procreation, donated to another couple, donated for research, or discarded. Sometimes, patients are unable to decide on the disposition of their embryos or, over time, clinics may lose touch with patients whose embryos they are storing. Large numbers of embryos have been “abandoned” since IVF began in the United States. Long-term embryo storage, therefore, has long been legally and ethically challenging for IVF clinics – well before their disposition could be considered a wrongful death.

Implications of the Decision

Within days of the Court’s decision in LePage, several clinics in Alabama halted the provision of IVF services.  LePage thus fell heavily on the shoulders of families and health care providers in Alabama immediately. Many patients whose IVF cycles had been stopped had insurance or medical complexities that made it impossible or impractical to seek care outside of Alabama. Patients also described clinics being unwilling to release embryos for transport out of state for fear of prosecution should the embryos be damaged in the process.

Medical societies, including the American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists (ACOG) immediately came out in opposition to treating embryos as children for purposes of civil liability. While limited to the state of Alabama, and its interpretation of the Wrongful Death of a Minor Act in particular, ACOG argued that LePage “will certainly affect access to fertility treatment across the country as more and more state legislatures advance policies that are based on an ideological and unscientific definition of personhood.”

The implications of LePage also may be inequitable in distribution. Patients identifying as Black, Indigenous, and People of Color, and LGBTQ, as well as those who reside in rural areas or who are low-income, already face large discriminatory, cost-related, and geographic barriers to ART. Like inequities in access to abortion care across state lines that were exacerbated after Dobbs, state bans impacting IVF will likely disproportionately decrease access to reproductive health care across the spectrum. In contrast, it is probable that higher income individuals in Alabama will be able to travel out of state for their fertility care, as has already been documented for abortion care.

In the long run, decisions like LePage will also likely dissuade fertility doctors and other obstetrician-gynecologists from staying in or moving to states that recognize fetal, or even embryonic, “personhood.” Obstetrician-gynecologists are already leaving states that have recently increased restrictions on abortion care, and fewer future obstetrician-gynecologists are applying to train in these states – concerned about their ability to gain training in full-scope clinical skills.

Next Steps

Since Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade in 2022, ending a federally recognized constitutional right to abortion under some circumstances, US reproductive health law and policy has faced explosive challenges. Many states have used Dobbs to implement total or extreme bans on abortion. Leaving the decision of when a legally cognizable interest in life begins to individual states has guaranteed upheaval across state lines and massive inequities in access to reproductive health care for patients. That said, LePage is still the first time a state has decided to consider an extrauterine embryo a child under its law.

In response to LePage, the Alabama state legislature was quick to pass a new law to protect those who provide goods and services related to IVF treatment in Alabama with civil and criminal immunity for “death” or damage to embryos. The law, however, fails to address the core issue of personhood, i.e. whether an embryo should ever be treated as a child under Alabama law in the first place. Other states are also re-considering the implications of fetal personhood legislation. Far from keeping courts away from social controversy as promised, the Dobbs decision and the individual state power to dictate circumstances under which patients can access myriad types of reproductive health care it unleashed – pose implications that remain unpredictable, inequitable, and heart-wrenching for patients and providers alike.

Admon L, Marsh E, Spector-Bagdady K. Challenges for In Vitro Fertilization After Alabama’s Decision in LePage v Center for Reproductive Medicine. Milbank Quarterly Opinion. March 12, 2024.

About the Authors

Lindsay Admon, MD, MSc, is an assistant professor of Obstetrics and Gynecology and an Associate Director of the Health Policy Pathway of Excellence at the University of Michigan Medical School. She is a R01-funded physician-scientist whose teaching and research addresses inequities in maternal health and perinatal health insurance coverage. She has published extensively in the peer-reviewed literature and lay press. She received her MSc with a concentration in health policy through the National Clinician Scholars Program (NCSP) at the University of Michigan’s Institute for Healthcare Policy and Innovation. She also completed her MD and residency training at the University of Michigan. She received her BA in Public Health Studies from the Johns Hopkins University.

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Erica Marsh, MD, MSCI, is Vice Chair of the Department of Obstetrics and Gynecology at the University of Michigan Medical School and Chief of the Division of Reproductive Endocrinology and Infertility. She holds the University Diversity and Social Transformation Professorship and the S Jan Behrman Collegiate Professorship of Reproductive Medicine. Dr. Marsh serves as the Associate Director of the Michigan Institute of Clinical and Health Research (MICHR) and she is the founder and director of the Women’s Health and Reproductive Disparities (onWHARD!) Collaborative. Dr. Marsh serves on the Board of Directors for the American College of Obstetricians and Gynecologists (ACOG) and the American Society of Reproductive Medicine (ASRM). She is the President of the Society for Reproductive Endocrinology and Infertility (SREI). Dr. Marsh’s research area of interest is focused on comparative reproductive health across populations. She seeks to understand the challenges of reproductive disorders through a translational lens–addressing their pathophysiology, their social determinants and clinical impact, and understanding the patient experience and community impact of these diseases from symptoms and diagnosis to treatment to health. Dr. Marsh partners with community members and organizations to build a research agenda and teams that include community members, faculty colleagues, fellows, residents, and students in the hopes of conducting socially meaningful research and passing along a positive research experience. Her work is currently funded by the NICHD, NIMHD, and the Chan Zuckerberg Foundation. Dr. Marsh graduated magna cum laude from Harvard College and cum laude from Harvard Medical School. She then completed her residency at the Integrated OBGYN Residency at the Brigham and Women’s Hospital and Massachusetts General Hospital followed by a Reproductive Endocrinology and Infertility fellowship at the Feinberg School of Medicine at Northwestern University.

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Kayte Spector-Bagdady JD, MBe, is an Assistant Professor of Obstetrics & Gynecology and health law and bioethics faculty at the University of Michigan (U-M) Medical School. She is also the interim co-director of the Center for Bioethics and Social Sciences in Medicine, which won the 2022 American Society for Bioethics & Humanities (ASBH) Cornerstone Award. She teaches the Responsible Conduct of Research as well as Research Ethics and the Law and is an Associate Editor of the American Journal of Bioethics. She is the PI of $3M in NIH funding towards improving the governance of secondary research with health data and specimens, and her recent articles have been published in The New England Journal of Medicine, Science, and JAMA among others. She is the former Chair of the American Heart Association’s Committee on data collection, sharing, and use, and ASBH board member. Prior to joining U-M, Professor Spector was an Associate Director for President Obama’s Presidential Commission for the Study of Bioethical Issues and practicing FDA law attorney. She received her law and bioethics degrees from the University of Pennsylvania.

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