(BIRMINGHAM, Ala.) — Since last year, Jasmine York, 34, and her husband have been trying to have a baby. The couple, both nurses, began freezing embryos before they got married in March 2023.
York had her first embryo transfer in August 2023, but the transfer failed, she told ABC News.
Determined to grow their family, the couple tried again, and they are currently undergoing their second round of in-vitro fertilization, or IVF.
But, after the Alabama Supreme Court issued a new decision last week ruling that frozen embryos are considered children, their embryo transfer appointment scheduled for March 20 was canceled by her hospital.
“It’s obviously really nerve-racking,” York told ABC News. “Where do we go from here? What would happen? We’re in the middle of this process, I’m taking medications, I’ve already purchased all of the medications for the transfer cycle.”
“But now, it’s just devastating, honestly, that all of that has been put on hold, and we don’t know what the next steps will be for us, or if we’ll even be able to afford the transfer of them out of state,” she continued.
The couple has spent more than $20,000 trying to get pregnant, according to York. They are now in limbo, unsure when they’ll be able to get the procedure, and if the money they spent on expensive medication will go to waste.
“We’re frustrated. Now, especially that a decision has been made to put everything on pause, I’m sad. I’ve had my moments of crying throughout the whole day and I’m angry. I’m angry that other people get to make a decision about whether or not I get to grow my family. I’m mad that other people’s opinions affect medicine and the practice of it,” York said.
“None of this is intentionally going in with an intent to harm a child. This is an attempt to create a child and it’s just frustrating and it’s sad that it could impact the rest of my life,” she said.
Alabama Supreme Court rules frozen embryos are ‘children’
News that York’s appointment was canceled comes days after the state Supreme Court issued a decision saying that frozen embryos are considered children under Alabama’s Wrongful Death of a Minor Act, opening the door to civil — and potentially even criminal — lawsuits for destroying the embryos, even if done accidentally.
The decision stemmed from a lawsuit by couples whose embryos were destroyed after a patient wandered into a fertility clinic and dropped the embryos, according to court documents. In order to remain viable, embryos are stored in subzero temperatures and handled with care to avoid contamination. When the embryos were dropped, they were no longer viable and could not be transferred to create a pregnancy.
The couples then brought civil lawsuits against the facility, but a trial court threw out their wrongful death suits.
The Alabama state Supreme Court then reversed that decision late Friday, ruling that embryos are “children.”
“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics,” the Court wrote in its opinion.
Associate Justice Gregory Cook, who wrote the lone fully dissenting opinion, said it was not the Court’s decision who meets the definition of “person” under the Wrongful Death of a Minor Act and that the ruling would have devastating consequences for Alabamians.
“Moreover, there are other significant reasons to be concerned about the main opinion’s holding,” he wrote. “No court — anywhere in the country — has reached the conclusion the main opinion reaches. And, the main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization (“IVF”) in Alabama.”
Patients see IVF services paused
At least three IVF providers in Alabama have indefinitely paused procedures following the Court’s decision, among them being the University of Alabama Birmingham health system, the largest in the state.
Alabama Fertility Specialists and the Center for Reproductive Medicine in Mobile – in southwest Alabama — announced Thursday they had decided to pause IVF treatments.
Meanwhile, Huntsville Reproductive Medicine, P.C., located in Madison, near the Tennessee border, told ABC News it was still proceeding with IVF treatments but pausing on discarding embryos, whether the embryos “were genetically tested and found to be abnormal or the couple has simply reached their family building goals and don’t want to donate their” embryos.
Already a mother to a 13-year-old from a previous marriage, York has since had three ectopic pregnancies, resulting the removal of one her fallopian tubes. York says IVF was her only option to get pregnant.
“I want to go forth with the IVF. The problem is that I don’t know what that looks like for us right now. I don’t know. If it’s something that will be an option for us, because of all of the factors that come into play, with the transfer in the finding of physician and in taking off work, to go do this whole procedure,” York said.
Kendall Diebold, 32, a hematology nurse practitioner from Hanceville — about 40 miles north of Birmingham — and her husband have been trying to conceive for two years.
They used two rounds of letrozole, a medication that decreases the amount of estrogen in the body to increase the odds of pregnancy. The first round resulted in a pregnancy that ended in miscarriage, the second round was unsuccessful.
The couple also went through two rounds of intrauterine insemination, which were unsuccessful. They were getting ready to begin IVF at UAB in April when the court issued its ruling and UAB shut down its IVF program.
Diebold was at work when her colleague came in and told her the program was being suspended indefinitely.
“I didn’t even stick around to hear what she said next, because I left,” Diebold said. “One of my best friends, I called her and I said, ‘Where are you because I need you to come take care of me right now.’ So, she took care of me. We went on a walk, and she quite literally held me while I cried.”
Diebold and her husband have discussed potentially going out of state to seek care in Georgia, Kentucky or Tennessee, which she described as a privilege that many other families may not have. She said she’s reached out to Emory Healthcare in Atlanta to ask about what the IVF process may look like there.
“I don’t want to transfer care because I love my physician so much and after a while you build a rapport with them,” she said. “It’s doable, but it’s likely incredibly challenging, just from a logistical standpoint.”
She described not being able to potentially get fertility care in her home state as “frustrating.”
“It’s stressful when you’re already dealing with something that is so emotional, and so, it’s absolutely frustrating, overwhelming, scary, all of the things,” Diebold said.
‘It should be my choice’
Also impacted by the decision are women who currently have embryos in storage and now may not be able to pursue IVF in Alabama or are not able to discard their embryos.
Audrey B, who asked that just the last initial of her name be used to protect her privacy, from north-central Alabama, is currently 31-weeks pregnant via IVF after she and her husband struggled to conceive for about two years.
Audrey, 35, who was being treated at UAB, still has two frozen embryos. She and her husband originally planned to wait a year or two after giving birth to try and transfer a second embryo.
“It just feels like now we do not have any control over our embryos,” she told ABC News. “Like, what does that decision do for me? Like, am I going to have to pay for storage for the rest of my life for those embryos if I don’t use them?”
“Even if I do want to use them, who is going to transfer them? My fertility clinic, they said they were stopping all IVF programs,” she added.
Audrey and her husband have talked about possibly going out of state for IVF in the future but worry about the added cost and travel expenses.
“Can we transfer or should we transfer our embryos out of state?” Audrey said. “And even though we were transferring out of state, what state? Because like are we transferring them to Georgia, which is the neighbor state, but I mean, what tells us that Georgia is not going to pass the same kind of law?”
“So [if] you have to transfer those embryos to states like Colorado, New York … how much it’s going to cost?” she said.
Taylor Cater Durham, 30, who lives in Birmingham is in a similar situation. Cater Durham and her ex-husband went through IVF for two years but were unable to conceive.
During that time, Cater Durham said she had at least two egg retrievals. The first resulted in just one viable embryo, which was transferred but she didn’t become pregnant.
The second resulted in eight eggs being retrieved, four of which led to viable embryos that could be transferred. Three were transferred but they didn’t result in pregnancy. They still have one embryo left.
“This new law, the [embryos] that they knew were inconclusive and were not viable, it states that we couldn’t donate, we couldn’t discard them, that we would have to store them or use them,” she told ABC News. “And going through IVF is already very, very heartbreaking, and to know that you’re going to have to put these embryos in or store them and know they’re not going to work. It’s just crazy.”
Cater Durham said she is paying $850 a year to store her last embryo and is worried that the price could potentially increase with all the embryos that will now have to be stored due to so many clinics stopping IVF procedures.
She added that she was not planning to discard her last embryo but she’s angry that the court took that choice away from her.
“It should be the patient’s choice,” Cater Durham said. “I’m not ready to get rid of that embryo yet [but] I feel like it should be my choice if I want to keep it, donate it, discard it. Whatever I decide I want to do, it should be my choice, not the state of Alabama’s.”
Copyright © 2024, ABC Audio. All rights reserved.
