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What the Alabama IVF ruling means for parents going through IVF

AYESHA RASCOE, HOST:

At least three Alabama clinics that provide in vitro fertilization, or IVF, paused their operations last week in response to the Alabama Supreme Court's ruling that a frozen embryo can be considered a child under state law, a decision that is raising questions across the country about how the IVF process will work now and what options will be left for parents depending on it to have a family. To shed light on what this ruling might mean, we're joined by Judith Daar, dean of the Northern Kentucky University Chase College of Law. She studies the legal and ethical questions that reproductive technologies like IVF can raise. Dean Daar, thank you for being here with us.

JUDITH DAAR: Thank you, Ayesha, for having me.

RASCOE: Let's start by taking a step back here. IVF has been going on for decades. How have politicians and courts considered embryos up to now?

DAAR: Courts have been considering the question of what is the legal status of the frozen embryo for decades. The first case at a high-court-level to consider this was in 1992, and it was over the disposition of embryos upon divorce. Who gets the embryos that are frozen when a couple divorces? So for many years, courts have delved into this question, but the Alabama Supreme Court was the first court to designate frozen embryos as children for purposes of the tort law, the wrongful death act that was interpreted by the court at this time.

RASCOE: After Roe v. Wade was overturned in 2022, you wrote about what that ruling might mean for IVF. Can you explain how you knew that the Supreme Court decision might have implications down the line for IVF?

DAAR: The Dobbs decision is very broad in its language of embryo protection. The majority opinion talks about the preference for the life of the unborn - an unborn embryo, an unborn fetus - in that case over the interest of a pregnant person in the context of abortion. The nature of standard of care IVF practice in the world today does result in the loss of embryo. The truth is that 45 years into this technology, this medical marvel, and the production of millions of children and happy families across the world, the science remains more art than science - that is, that we still are not 100% efficient. So as a result, cryopreservation is a routine and standard part of IVF. And I can talk - and I know there's been a lot of discussion over the last week - about the clinical implications of the decision, particularly if cryopreservation is no longer part of the standard of care.

RASCOE: How would that affect the standard of care if you can no longer - and cryopreservation is the freezing of the embryos, just in layman's terms.

DAAR: The practice would be more expensive. First of all, we know that clinics are going to probably look to increase their insurance limits. It will involve more cycles for patients because they - as I said, they'd have to produce one embryo at a time instead of freezing them and using them later on. It's more risky to the patient. The additional hormone treatments, the surgical retrieval, always pose risk to the patient. Also, IVF would be more unlikely to result in a live birth because one embryo at a time would mean multiple cycles. For many women who have age-related infertility, the longer you wait, the more unlikely they might be to produce a viable egg. And then finally, there would be more chances of having an unhealthy child rather than the health profile that we see today. And that's an area that's been a little more obscure but not discussed over the last week, and that is the impact of this decision on pre-implantation genetic testing, which is fairly routine.

RASCOE: Talk to me a little more about that. Is it the idea that you would not be able to discard an embryo if you tested it and you saw that it had some serious genetic condition that would make it unhealthy or something like that?

DAAR: You're absolutely right. The decision, which does treat the embryo as a child, means that the law has to regard that embryo as a person, as a child, and therefore anyone who interacts with that child must act in the best interest of the child. So it converts the legal standard from a negligence standard, where you have to be careful, to a different, much higher standard where you have to act in the best interest of the child. Let's say that an embryo is detected to contain even a lethal or a very serious genetic anomaly. Well, would the court in Alabama say but that's a child, and you can't destroy or harm that child? Could that lead to forced transfer of diseased embryos, because there's no other outcome that would be in their best interest other than to transfer them? And that is a logical conclusion, follow-through, to what the Alabama Supreme Court has told us. And so it's easy to see how testing could be illegal or risky to the provider under the Alabama case.

RASCOE: That's law professor and bioethicist Judith Daar. Thank you so much for joining us.

DAAR: Thank you so much. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.