(MONTGOMERY, Ala.) — Dr. Beth Malizia, an Alabama physician, went through 12 years of training to provide patients with fertility care. But the doctor and co-owner of Alabama Fertility says her hands are tied after the Alabama Supreme Court issued a decision that frozen embryos are considered children.
The clinic is one of three facilities in the state that have halted in vitro fertilization (IVF) treatments amid concerns that their practices could run into legal troubles.
“Patients come first. That’s what we’re taught all the way through from the time we decide to go into medicine, and this is a decision that sort of takes that away from us,” Malizia said.
“The counsel, our lab director and all the physicians at Alabama Fertility have struggled with this for many hours and some made some really, really hard phone calls over the last couple of days,” said Malizia.
The clinic has paused all frozen embryo transfers, but will continue new patient visits, other standard fertility care, surgeries and continue care for patients currently on medications who are in the middle of a cycle, Malizia said.
Making calls to patients whose treatment the clinic paused has been “absolutely horrible” and “heart-wrenching,” she said.
In the ruling, the court said it would open door to civil and potentially criminal lawsuits over the mishandling of embryos. Physicians like Malizia say they are now fearful they could face wrongful death lawsuits — or potentially criminal charges — for discarding unused embryos, a routine part of IVF, or unintentionally mishandling embryos.
The ruling came as part of a lawsuit filed by couples whose embryos were destroyed after a patient wandered into a fertility clinic and dropped them. The couples tried to file a wrongful death suit, but a lower court had thrown out the case. The state Supreme Court then reversed that decision and set a new precedent that embryos are children.
In a concurring opinion, Alabama Chief Justice Tom Parker – who has a long record of issuing anti-abortion opinions – cited Scripture, writing that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God.”
Among the three fertility providers that suspended IVF treatment is the state’s largest healthcare system, UAB Hospital. Four remaining providers have not suspended IVF treatment.
“We are in a position where we just don’t know what the legal ramifications are of an embryo that gets thawed. Embryos don’t always survive [transfer],” Malizia said.
Signs of more clarity began to surface on Friday, after a week of pushback on the ruling from families trying to conceive through IVF and an outpouring of criticism, particularly from Democrats and moderate Republicans.
Alabama Attorney General Steve Marshall, the state’s top law enforcement official, said he has no intention of “using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers,” the office’s Chief Counsel Katherin Robertson said in a statement Friday.
Alabama Governor Kay Ivey also said Friday that she’s “working on a solution” with Republican colleagues in the House and Senate to pass legislation that would guard IVF treatments in the state.
“Following the ruling from the Alabama Supreme Court, I said that in our state, we work to foster a culture of life. This certainly includes some couples hoping and praying to be parents who utilize IVF,” Governor Kay Ivey said in a statement to ABC News.
But the legal ruling has shown the fragility of IVF treatment in a post-Roe vs. Wade America, where the debate over when life begins has led many abortion rights advocates to speculate that IVF could become collateral damage.
Some physicians could be deterred from working in fertility in Alabama, said Sean Tipton, chief advocacy and policy officer at the American Society for Reproductive Medicine.
Tipon said physicians in the state are scared. “They are also angry, which is understandable, and they are also tremendously sad for their patients, in part because they don’t know what to tell their patients,” said Tipton.
“Just imagine being a physician who you’ve built your career on being able to help these people have babies, and you spend a lot of time reassuring, explaining, helping them understand and feel better about the process they’re going through — and now you can offer none of that,” Tipton said of physicians.
The fallout from the court ruling could spread beyond IVF treatment, Tipton said.
“I think the first impact with physicians is going to be young physicians choosing not to go there for their training. [And] University of Alabama Birmingham is one of the top public medical schools in the country,” Tipton said.
Tipton said the decision and risk of being sued could also discourage other medical workers, including nurses, from working in fertility clinics in the state; they would likely consider working in other specialties or even leaving the state.
Tipton heavily criticized the decision and its consequences.
“It absolutely makes no sense that people who loudly proclaim themselves to be ‘pro-life’ somehow oppose the use of what is the most ‘pro-life’ medical procedure there is out there. The only thing that in vitro fertilization does is help people have children,” Tipton said.
Patients struggle with news IVF has been paused
Patients interviewed by ABC News shared their heartbreak and concerns over not being able to continue their IVF treatments. For fertility patients in Alabama looking to start or expand their families, the past week has brought a lot of sudden changes to the carefully laid plans often required by the IVF process.
Gabbie Price, 26, and her husband have been financially planning to begin IVF for over a year, downsizing from a house to a camper van to cut costs and getting a new job because of the fertility benefits.
But their plan to start treatment in March has been halted by the ruling. Price said they’re now exploring options out-of-state because even if they found a clinic in Alabama to handle her care, she would be concerned about the potential liabilities.
“I’m terrified to have embryos here,” Price said at her home in Leeds, Alabama.
“I don’t know what that’s gonna look like, I don’t know what sort of rights we’re going to have over the embryos that we create,” she said.
Tucker Legerski and his wife, who live in nearby Tuscaloosa, Alabama, have been trying to have children since they got married in 2021. They began IVF about a year ago.
Their first embryo transfer ended with a miscarriage at eight weeks.
They were planning their second embryo transfer for some time in April, but the court decision upended their plans.
“Those embryos are our best hope for making kids right now. So that’s what hurts the most, I think,” Legerski said.
“If we aren’t able to use those embryos, then we have a much lower chance of having children,” Legerski said.
Angela Granger, 41, a Georgia resident who traveled to Alabama for IVF treatment to conceive her son, told ABC News she turned to the procedure after an ectopic pregnancy almost cost her one of her fallopian tubes.
Granger, who delivered her son in May 2021, and has been hoping to add another child to her family, decided after the state Supreme Court ruling that she wouldn’t pursue IVF in Alabama. While encouraged by lawmakers who say they will take action to protect the procedure, Granger said she needs to see legislation “in writing” before she is comfortable enough to undergo treatment or even store embryos there.
On Thursday, she was offered a job nearly 2,000 miles west, in Las Vegas, Nevada. She accepted.
“A big part of that is to get out of the south. If I wanted to really push and wait, I’m sure I could find a job down here. But this is just too much. I take it as a sign,” Granger said.
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