IVF decision a slippery slope

Alabama court decision tightens noose on women's reproduction rights. Regarding frozen embryos as full-fledged children emboldens efforts to outlaw abortion at any stage as well as some methods of contraception. 



March 1, 2024 - 3:04 PM

Sen. Tammy Duckworth, D-Ill., greets people after speaking at a health care rally in 2017, near the U.S. Capitol. Duckworth, severely injured during the Iraq War, has two daughters thanks to in vitro fertilization. (Brian Cassella/Chicago Tribune/TNS)

Sen. Tammy Duckworth shows why personal experience is the best teacher. 

Duckworth is a former Iraq War veteran, during which she flew Blackhawk helicopters for the Illinois National Guard.

In 2004, Duckworth’s helicopter was hit by a rocket-propelled grenade. She lost her legs and the partial use of one arm. Her recovery at Walter Reed Army Medical Center required one year.

After Duckworth returned home, she and her husband, Brian, wanted to start a family but were plagued by infertility issues.

In 2018, Duckworth gave birth to the first of their two daughters through in vitro fertilization. During the process, five of Duckworth’s eggs were successfully fertilized, three of which were deemed non-viable and were discarded. Had doctors implanted the damaged eggs, miscarriage was all but certain.

Were Duckworth in today’s Alabama, she and her physicians could be convicted of manslaughter or outright murder for their decision to destroy the non-viable eggs because of a recent ruling by the Alabama Supreme Court. 

On Feb. 16, the court ruled that embryos created by in vitro fertilization should be regarded as a full-fledged children, and as such deserved the protections provided by the constitution.

The ramifications of the decision included closing half of the state’s IVF clinics.

Though Alabama legislators are now scrambling to write new laws that ensure IVF treatments can continue, it’s not a slam dunk. At issue are differing opinions about the fate of damaged, discarded or unused eggs, including whether they are to be considered as human beings.

It’s not until a fertilized egg, or embryo, is implanted in a woman’s uterus that it can grow. With IVF, the eggs are housed in cryogenic tanks.

Identifying these fertilized eggs as children has caused the Alabama fertility clinics to halt their services for fear they could be sued for how they conduct in vitro fertilization — which for many couples is their last chance of conceiving a child.

Successful IVF typically is a monthslong process — for Duckworth it took 10 years — that requires multiple attempts. It’s also a very expensive treatment, often in the tens of thousands of dollars if not more.

Ever since the U.S. Supreme Court overturned Roe v. Wade in 2022, ending the federal right to an abortion, state legislatures increasingly have turned their attention to a woman’s reproductive rights including abortion, birth control and in vitro fertilization.

The Alabama court decision ruled that there was no exception for frozen embryos under the state constitution “to ensure the protection of the rights of the unborn child.”

The decision gives the court — not the parents — say-so over how embryos stored at a fertility clinic are to be managed.

Alabama’s attorney general has said he will not enforce the court’s decision, or any that infringe on IV treatments.

How future Alabama AGs will rule, of course, is an unknown.

Increasingly, ultra-conservative lawmakers are jumping on the bandwagon to declare life begins at the moment of fertilization — even embryos frozen in liquid nitrogen at minus 320 degrees — in their effort to outlaw abortion at any stage as well as some methods of contraception.