The decision to pursue in vitro fertilization in Alabama and its impact on Black reproductive health

On February 16, 2024 at Supreme Court of Alabama issued a ruling stating that embryos resulting from in vitro fertilization (IVF) needs to be considered children. The legal dispute arose from a wrongful death lawsuit brought by three couples whose embryos were tragically lost at a fertility clinic in 2020. The incident occurred when the patient entered the realm where the embryos were stored. While trying to reach out and grab some, he burned his hand due to the extremely low temperature and unintentionally dropped the pair embryos. They hit the bottom and were destroyed.

The couples then initiated legal motion against the Center for Reproductive Medicine and the Mobile Infirmary Association under the Alabama Wrongful Death of a Minor Act. While the law traditionally applied to fetuses, it didn’t expressly cover embryos derived from in vitro fertilization (IVF).

Initially, a lower court ruled that the embryos didn’t have the legal capability of an individual or child, which precluded a wrongful death lawsuit. However, in a shocking ruling, the state Supreme Court sided with the couples, affirming that frozen embryos needs to be considered “children” under the state’s wrongful death law and needs to be afforded the identical protections. Embryos destroyed in clinics and hospitals may result in wrongful death lawsuits being filed against these offices and institutions.

The court’s decision, which expanded the law’s application to “all unborn children, regardless of their residence,” has far-reaching implications for the legal status of embryos and the reproductive rights landscape in Alabama.

Less than per week after the Alabama Supreme Court ruled that embryos resulting from in vitro fertilization were recognized as children, three major IVF providers in the state have suspended services for fear of the legal consequences of this decision. In response to mounting pressure to restore in vitro fertilization (IVF) services in the state, Gov. Kay Ivey promptly introduced laws on March 7 to protect doctors from the legal ramifications of the Alabama Supreme Court’s ruling.

In response to public protests and rapid legislative efforts, the bill was quickly passed. As a result, doctors at several primary fertility clinics in Alabama have announced plans to resume in vitro fertilization services. Despite the resumption of services, individuals and families receiving infertility treatment are actually forced to grapple with the lingering effects of the interruption.

Heather Skanes, MD, Founder and Executive Director Oasis of Women’s Health clinic positioned on Birmingham’s west end says the recent ruling has already had a big impact on infertility treatment, causing more delays and financial burdens for patients, particularly Black and Brown patients who’re already marginalized in the medical community. “Many people of color already felt like the odds were stacked against them for infertility treatment,” Skanes says. “People don’t necessarily diagnose them with infertility when it needs to be diagnosed, and too many people are not offered infertility treatment once they are diagnosed. It’s like doctors telling patients, “You’re infertile.” “Good luck,” and people feel like they don’t have the knowledge to make the choices they need to make.”

The latest data on infertility from Center for Disease Control shows that although greater than 13% of American women aged 15 to 49 have impaired fertility, black women are almost twice as likely to experience infertility as white women. They are less likely to seek and undergo infertility treatment. This is not necessarily because black women don’t desire to participate in IVF. Treatment costs could be significant, often starting from $10,000 to $15,000 per cycle, not including additional expenses comparable to medications, consultations, and diagnostic tests.

When we consider the demographics of those without adequate insurance, black Americans are overrepresented. Lack of IVF insurance then places a big financial burden on Black people and families looking for fertility assistance. In addition to systemic barriers to accessing in vitro fertilization treatment, many Black women and those looking for care must grapple with the cultural stigma surrounding infertility treatment that’s deeply rooted in Black communities.

Historically, the prevailing view has been that looking for medical assistance is synonymous with personal failures and shortcomings. As a result, many individuals battling infertility may feel as in the event that they have to hide their struggles and could also be reluctant to pursue treatments comparable to in vitro fertilization for fear of being judged. Black women battling infertility may experience further ostracism due to society’s judgment of how they spend their money.

So, for many who find the courage and funds to seek treatment in hopes of expanding their family, Skanes notes that this ruling is an element of a more significant shift in health care practice where legal considerations are replacing scientific judgment, potentially threatening patient care and outcomes. This trend shouldn’t be specific to Alabama, but reflects broader challenges in driving reproductive health policy across the country.

“Rules that limit access to health care will continue to change the way people practice, not based on evidence, but based on concerns about liability. Healthcare providers play a key role in supporting patients on their fertility journey,” Skanes emphasizes. “It’s about providing compassionate care, offering tailored treatment options, and ensuring patients feel empowered and supported every step of the way in which. In the face of overwhelming laws that’s in no way consistent with best practices or evidence-based medicine, providers proceed to have a responsibility to share and facilitate access to credible information.

For LGBTQ+ individuals and families, the trail to parenthood often presents various unique challenges. In vitro fertilization serves as a source of hope, offering a path to overcome these obstacles and realize the dream of beginning a family. Mia Cooley, reproductive health advocate and founder xHood, provides fertility, family constructing, and nurturing support for the Black Queer community. Cooley says the platform was born out of a private need to create a community where Black LGBTQ+ parents could come together, free from experiences of homophobia, transphobia and racism often found in other spaces. Since its inception on Mother’s Day in 2019, xHood has grown right into a vibrant and supportive community, offering resources, events and a way of belonging to Black LGBTQ+ parents all over the world.

Walking the byzantine path of infertility treatment and reproductive rights as a queer Black parent, Mia Cooley’s journey has been characterised by resilience and perseverance despite systemic obstacles. Reflecting on her experience, Mia shares: “The journey to parenthood is already a deep and sensitive chapter in everyone’s life. However, for queer Black parents like my partner and I, this experience is often marred by discrimination and a reluctance to learn from health care providers.”

She continues, “Navigating the maze of fertility treatments as a Black queer person felt like a constant battle against a system designed to exclude and invalidate us at every turn. The emotional impact of infertility treatment is often overlooked. It’s a roller coaster of hope and despair, compounded by the stigma and discrimination that Black people face when seeking reproductive care. “Every visit, every procedure seemed like another obstacle to overcome in an already difficult journey,” he says.

“But we didn’t give up because our desire to become parents outweighed the obstacles in our way,” Cooley adds. “The financial burden of infertility treatment is enormous. This is a burden that disproportionately affects Black families, who already struggle with systemic inequities and barriers to access to health care. There were times when we wondered whether it was worth it, whether the impact on our mental and emotional well-being was too great. But in the end, the joy of holding our baby in my arms made every sacrifice worth it.”

As the post-Dobbs story unfolds, we witness a unbroken trend of regressive policies restricting access to reproductive health services. The motives of anti-abortion leaders have gotten increasingly apparent. Abortion rights advocates have long warned of the implications of overturning Roe v. Wade, and now that abortion is increasingly isolated and marginalized as an option fairly than as integral health care, we’re starting to see the broader implications of anti-abortion laws for other points of reproductive care. across the country. A recent decision in Alabama to protect IVF providers from legal liability sheds light on this trend.

Ensuring that the provider is protected when accessing medical care is amazingly necessary, as is the patient. Do we also be sure that the law adequately protects people looking for infertility treatment, especially those in communities which might be at increased risk of criminalization for pregnancy outcomes?

Cooley states: “This ruling also reflects the broader issue of reproductive justice – including not only access to care, but in addition the precise to parent in a secure and supportive environment. It is a reminder that reproductive justice shouldn’t be only the precise to have children, but in addition the precise to raise them in communities that affirm and have a good time our identities.”

“As we continue to fight for reproductive justice, let us remember that our struggles are interconnected,” she adds. By standing together, we will create a world where all families are respected, valued and protected.”