Why the Alabama Supreme Court Embryo Ruling is Bad for IVF and People with Infertility

The Alabama Supreme Court recently ruled that embryos created from IVF as persons and that anyone who destroys or discards an embryo can be sued and held liable for wrongful death. The essentially equates a fertilized egg to a person in the eyes of the law. This has widespread implications for the ability to provide IVF care in Alabama and potentially the rest of the country. It also has significant implications for the cost, safety and emotional toll of IVF treatments.

What is IVF

IVF stands for in vitro fertilization. It refers to the process in which the human ovary is stimulated to yield as many eggs as possible from a given month instead of only one egg, with the hope of obtaining one or more embryos that have the potential to result in a live birth. Because on average you need 6-10 eggs to achieve one live birth, one of the key reasons IVF works is that you are able to create as many embryos as possible at a given time.

Additionally, attrition is intrinsic to the IVF process. Eggs are typically exposed to sperm on the day of the egg retrieval (the procedure to extract eggs from the ovary). Once this is done, typically only about 70% of eggs will fertilize to become embryos and only 30-50% of those embryos will make it to the point that they can be considered for transfer back into the uterus.

When an untested embryo is transferred back into the uterus, the chance of a pregnancy is anywhere from 20-50% depending on the age of the egg and the chance of miscarriage is anywhere between 25 -60% also depending on the age of the egg source. In order to decrease the likelihood of miscarriage and increase the chance that an embryo will result in a baby, a procedure known as preimplantation genetic testing is often performed on the embryo to determine the viability of the embryo.

When a tested embryo is transferred back into the uterus, the chance of a baby is between 50-70% and the risk of miscarriage decreases to south of 10%.

What are the implications of not being able to discard embryos on IVF?

Cost

As it currently stands, IVF is a very expensive process costing between $10,000 to $25,000 per cycle. By mandating that all embryos need to be kept frozen ad infinitum, there will be additional costs for the storage of these frozen embryos. It also raises questions such as, in the event that the patient passes away, who will these storage costs then be assigned to?

Furthermore, if we are no longer able to test embryos to determine if they are viable for transfer, patients will have to undergo several more unsuccessful embryo transfers to get to a successful transfer. With the cost of an embryo transfer cycle being between $4,000 and $6,000 not including medications, this very quickly becomes cost prohibitive. This is also a problem for patients with insurance coverage, as this usually only covers a fixed number of cycles before patients need to begin paying out of pocket.

Storage Space

We are already in a world-wide crisis of what to do with the overwhelming number of embryos currently in storage and the immense amount of resources required to continue to store embryos that may never be transferred. The storage of embryos is a resource intensive process requiring, physical location with enough space for the liquid nitrogen tanks, lab personnel and a constant monitoring of liquid nitrogen levels and replenishing liquid nitrogen levels when they run low. All of these costs add up, and by designating embryos as humans, there will be a tremendous increase in the number of stored embryos and an immense and unprecedented increase in both cost and logistical issues related to the storage of these frozen embryos.

Ethical and Mental Health Considerations

The Hipprocratic oath includes this statement “I will abstain from all intentional wrong-doing and harm”. Having personal experienced two miscarriages, I sadly have the confidence to say that causing a patient to miscarry when you have the means to do so definitely constitutes wrong-doing. The pain of a miscarriage never completely leaves and by performing preimplantation genetic testing to transfer viable embryos we are able to prevent this painful experiences that breaks the heart of the person miscarrying and very often can fracture these families and their relationships. In addition to the mental health effects of a miscarriage, each miscarriage introduces the possibility of needing surgical management via a surgery known as a dilation and curettage (D&C). Each D&C procedure increases the risk of the formation of scar tissue and adhesions in the uterus. This, in turn, further decreases the likelihood of a future pregnancy in that uterus, resulting in an unfortunate cascade of downstream effects.

All of this to say that an embryo definitely does not equal a child as shown by the immense amount of attrition. An embryo, unlike a human being, does not have cells or organs dedicated to certain functions. It is a clump of cells which outside of an outstanding amount of scientific innovation and intervention has no ability to result in a child.

In summary, when we make the choice to designate embryos as children, we are also deciding that people with infertility are not entitled to the best and most effective treatment we have for infertility. We are saying that we do not care enough about “abstain(ing) from all intentional wrong-doing and harm” to prevent an avoidable miscarriage that could worsen an already significant infertility diagnosis. We are prioritizing ideological arguments over the essential aspects of an individual's lived experience and medical treatment, diminishing the significance of the human element.