The State of Embryos in The State of Alabama

To begin . . .

I know how painful it can be to lose embryos during an IVF cycle, and I get that to some people this is the equivalent of losing an unborn child. I have nothing but empathy for anyone processing this kind of loss. 

However, I absolutely can not believe that the Alabama supreme court used carefully selected quotes from the bible and a law from 1872, to rule that anyone who destroys frozen embryos (“extrauterine children”) on purpose or by accident, can be held liable for wrongful death. This ruling is collateral fallout from the overturning of Roe, when 11 states passed laws that define personhood as beginning at fertilization. The ruling will change the entire landscape of in vitro fertilization (IVF) in Alabama, and in the states that are likely to adopt this new playbook.

Serious or Snark?

As fair warning, in this blog post, I am going to approach Alabama’s ruling from the serious side and from the side of snark.

Serious - How we regard embryos is deeply personal. And should remain that way.

Let’s talk about embryos - which is what IVF is all about. 

How are embryos created?

When an egg cell and sperm cell unite, they create the first cell of what can become a new human being. About 12-24 hours after fertilization, the new cell divides to form two cells; the two cells divide to form four cells; and so forth. Cell division continues every 12-24 hours, and about 5-6 days later, when an embryo is around 100-150 cells big, it is ready to implant in the uterus.

Sometimes the process of fertilization and embryo development happens inside the body, and sometimes it happens in a medical laboratory as part of IVF. 

When undergoing IVF, a person takes hormones to increase egg production in the ovaries. Before the eggs are ovulated, a fertility doctor surgically removes the eggs, and an embryologist fertilizes them with sperm, in a petri dish. Due to the cost, the side-effects of the medication, the invasiveness of an egg retrieval and embryo transfer, and a far less than 100% success rate, providers try to create as many viable embryos as possible in each IVF cycle. Since transferring a single embryo to the uterus is the standard of care, before even undergoing IVF, intended parents have to figure out what they will do in the likely case that extra embryos remain. They have a few choices. 

Extra embryos can be frozen and then used if the first transfer doesn’t work; or used at a later time - say, if they want to conceive a sibling. When people are done growing their family, they can destroy the embryos according to strict medical protocols; or donate them: to someone else so they can grow their family, to research, or to train embryologists. 

Sometimes, after embryos develop in a petri dish for a few days, they are genetically tested and then frozen. The results help a doctor choose the healthiest embryo to thaw and transfer to the uterus. The rest of the embryos face the same fate as described above - they are destroyed or used by others. 

Do all Embryos Develop?

But it is so important to keep in mind that for many, many reasons, not all embryos that are created continue developing - whether they were made inside the body or outside the body. 

Inside the body, not all embryos continue to develop as they tumble through the fallopian tube toward the uterus. Of the ones that do divide into more cells, not all of them successfully implant. Of the ones that implant, not all of them go on to form a viable pregnancy. About 10 to 20 percent of known pregnancies end in a miscarriage - this is when a pregnancy ends on its own before the twentieth week of gestation. Most miscarriages are caused by problems with the embryo's genetic material.

Outside the body, embryos can experience the same sorts of demise. They don’t develop likely due to genetic problems; or they get damaged or destroyed during the process of creating, freezing, thawing, or transferring them.

Do all embryos become a baby?

The creation and destruction of embryos is something that almost always happens with IVF. It is nearly medically impossible and cost prohibitive, to create one embryo at a time, for that embryo to be viable, for that viable embryo to implant, and for the pregnancy to continue until a baby is ready to be born. 

Industry folks talk about the IVF funnel, which looks like this: 

Illustration Source; Another good source: Fertility IQ

This graphic shows that from 10 fertilized eggs, 7 embryos developed. Of the 7, only 3 were genetically healthy, which resulting in the birth of one child.

How do people decide what to do with extra embryos?

What people decide to do with genetically abnormal embryos and the embryos that are frozen depends on how they think about the embryos. 

Many people regard embryos similarly to egg and sperm cells. Other people regard them as something more than a cluster of cells. Some people (and the Alabama supreme court) think of them as unborn children. Other people fall somewhere along this continuum. 

When people regard embryos as unborn children, they are often conflicted about what to do with their remaining embryos. Some give them a burial, to say goodbye. Some donate them to others - knowing that they will always have a genetic connection to a child in another family. Some have them all transferred to their uterus at a time when they will not likely implant, because this gives them comfort in knowing they gave the embryos a “chance” at life. Others keep them frozen indefinitely, though this gets expensive (about $500 a year). Others are in such conflict, they stop paying the embryo storage fees and leave it up to the clinic or lab to decide what to do with them.  

Isn’t What to do with embryos a deeply personal decision?

What to do with extra embryos is hugely personal, and should remain that way for anyone undergoing IVF. It is up to each and every family to make a decision that is best for them. If a passage from the bible helps someone make the right decision for their family, fine. If support of scientific inquiry and advancement helps another family decide, fine. If the desire to help another person dealing with infertility drives the decision, fine. Each person’s ethical compass, values and beliefs is just as valid as anyone else’s in regards to embryos; and along with medical advice, this is what should drive an individual’s decision. 

But, when states take it upon themselves to define personhood from the moment of fertilization, and imposes criminal penalties on anyone who messes with this “person” in any way, we begin living in a scary dystopian world; where not only the destruction of embryos in IVF (fresh or frozen) are criminalized, but perhaps women who miscarry are deemed criminals as well. Since it is estimated that 40-60% of fertilized eggs inside the body never develop into viable embryos or pregnancies, can women be charged with manslaughter? 

It makes me sick to even think about this; and just how far judges and politicians are willing to go to take away our reproductive rights and penalize women.

What can you do?

As this battle continues to heat up, I am not exactly sure what the action steps are. I just joined Resolve’s Fight for Families campaign, which is working to protect access to IVF, https://fightforfamilies.resolve.org/. I think that is a good place to start.

The Snarky Side

I often deal with political bewilderment with often inappropriate sarcasm. It’s my immature way of slowing down reality, so I can process it at my own rate. I have been hooked on all the snarky comments that people have been sharing online, and I’m keeping a laundry list going. Here I have paraphrased the more creative ones:

If embryos are children, can you even legally freeze the embryos to begin with?

Is freezing embryos wrongful imprisonment or child abuse?

Can the embryos get a birth certificate? Can you apply for a social security number for them? 

If embryos are the same as children, can people get a tax credit for each and every frozen embryo in storage? And is the tax credit good for as long as they remain frozen?

If thawed embryos don’t continue developing, can you file for disability?

If an embryo is frozen for 18 years, can they be thawed and then vote in an election?

In Alabama, can you retire 9 months early?

If someone ships their embryos to another state, is that child trafficking? If a friend takes them across state lines, is it kidnapping? 

Can IVF clinics surrender their stash of frozen embryos to child protective services? 

If you leave the embryos frozen indefinitely, is that child abandonment?

If the parents die, can the embryos collect inheritance?

Can you carry them around in a cooler, and legally drive in the carpool lane?

If the IVF storage tank looses power, and the embryos die, does the power company get charged with genocide? 

Chief Justice Tom Parker used a quote from Genesis to justify the ruling. "Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself," Parker wrote. "Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory."

What about using Genesis 2:7: "And the Lord God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living being".

Please email me if you have other snark to add!