Some Alabama clinics pause IVF services amid scramble for next steps
For patients and their doctors, in vitro fertilization, or IVF, had long been associated with hope and reassurance for the future; in Alabama, seeking or providing infertility treatment is now mired in anxiety.
The Alabama Supreme Court’s ruling that embryos are equivalent to existing children and therefore eligible to be claimed in a wrongful-death suit led to IVF doctors from across the state and their allies to gather virtually Tuesday night. They discussed the ramifications of last week’s decision.
By Wednesday, the fallout was clear: At least two of the state’s eight IVF clinics, the University of Alabama at Birmingham’s IVF division and Alabama Fertility, said they were pausing some parts of IVF treatment. They canceled appointments with patients as they navigated a court decision that has sent shock waves through the world of reproductive medicine.
The Washington Post contacted several other clinics in Alabama but could not confirm which IVF services they are providing as of Wednesday evening.
The feelings of anxiety were palpable Tuesday night when several of the state’s fertility doctors and legal experts convened a Zoom call to discuss the ramifications of last week’s seismic ruling by the Alabama Supreme Court.
Details of the call, obtained by The Post, offer a view into how the lives and livelihoods of those pursuing or practicing assisted reproductive medicine in Alabama have been plunged into chaos since the court’s Friday ruling.
Health-care providers, lawyers, and national and state officials discussed the details of the medical and legal case that led to the ruling and laid out the hurdles ahead of them, with possible solutions. Most importantly, they offered support to each other after days of confusion.
Many in Alabama now fear IVF will be permanently inaccessible or severely limited because of the financial and physical costs to patients and civil or criminal liability for providers.
“The significance of this decision impacts all Alabamians and will likely lead to fewer babies - children, grandchildren, nieces, nephews, and cousins - as fertility options become limited for those who want to have a family,” the Medical Association of the State of Alabama said in a statement Wednesday.
The medical association was among the participants on Tuesday’s roughly 20-person call, which was organized by the American Society for Reproductive Medicine and included legal experts and representatives with five of the state’s eight clinics, according to the CDC, that provide IVF services in Alabama.
Beth Malizia, a partner at Alabama Fertility, described the mood of Tuesday’s call as “somber but optimistic for a solution.” She and her colleagues in the small fellowship of Alabama fertility doctors welcomed the chance to hear legal perspectives and offer support to one another. Most importantly, Malizia said, was “finding a solution for the women of Alabama.”
Earlier Wednesday, Malizia had to call four of her patients - all of whom were scheduled for embryo transfers in a few hours - to tell them that the clinic was pausing all transfers for at least a day or two. The decision to cancel embryo transfers, but to continue with other procedures, such as planned egg retrievals, was made under the guidance of the clinic’s lab directors and lawyers.
“My patients were crying and upset, as I expected them to be,” Malizia said. “It felt absolutely terrible.”
The four patients will now have to wait at least a month, for their next ovulation, to start an embryo transfer.
Alabama Fertility partner Michael Allemand described their lab technicians and managers as “terrified.”
“No one was confident that if the embryo failed to thaw they wouldn’t be held liable,” Allemand said.
Embryo transfer has been making embryologists and others skittish because much of the legal gray area created by the state Supreme Court ruling exists in the space between when an embryo is taken out of its cryogenic tank and when it’s implanted in the patient.
Before the court ruling, the standard of care for IVF treatment was to retrieve eggs from a patient, fertilize them with sperm outside the body, and form embryos which could later be implanted in the uterus. Multiple embryos are typically frozen in case initial embryo transfers are unsuccessful, if the complex freezing and thawing process renders the embryos unsuitable for transfer, or if a patient desires more children in the future.
The thawing and freezing of embryos is one of the most difficult parts of the IVF process, Allemand said. “When we thaw an embryo, there’s a chance it won’t survive; it’s rare but possible,” he said. “These are standard risks.”
IVF is an invasive, difficult and emotional process, Malizia noted, which is why patients tend to create multiple embryos and freeze them, to lessen the financial costs as well as the physical and medical risks.
Andrew J. Harper, the medical director at Huntsville Reproductive Medicine, told The Post via email that patients, even religiously conservative ones, have long been comfortable with IVF as well as with the knowledge that unused embryos get donated or discarded. According to a brief filed by the Medical Association of the State of Alabama in the case, the cost of embryo storage is between $350 to $1,000 a year depending on the facility.
“Now [patients] may feel that [they] have to use all their embryos and not discard any. But the answer there is to only fertilize the first 8 to 10 eggs to minimize the potential for an excessive amount of cryopreserved embryos (CPEs),” Harper wrote.
Harper’s clinic was set to discard several “cohorts” of cryopreserved embryos that had been abandoned - some dating back to 2008 - just as the state Supreme Court ruling came down last week.
The clinic has been sending certified letters, making phone calls and using other means to contact patients, but “none of it works,” Harper said. On Tuesday, his clinic put a pause on moving forward with disposing frozen embryos in cases where they can’t get a notary-signed consent form from patients, even when the embryos have been abandoned for more than 15 years.
Huntsville Reproductive Medicine will probably start sending more frozen embryos to off-site storage facilities in “patient-friendly states,” where patients can opt to discard unused embryos without risking the civil or criminal exposure that many now fear in Alabama.
The combination of fear and uncertainty since Friday’s ruling left many providers feeling isolated before Tuesday’s meeting.
“Since the news about the ruling broke, we have been feeling alone and attacked,” Allemand said. He was unable to join the call because of technical issues, but he said the other four partners at his clinic took part and gave him a full briefing.
“We [in Alabama] are the only ones being targeted right now,” Allemand added. “It’s a pretty lonely feeling.”
For state IVF providers who were not party to the lawsuit, the court ruling came as a shock; most were not even aware of the forthcoming ruling, which Allemand believes was purposefully kept quiet.
Since the ruling, Allemand and his partners have spoken nightly to stay on top of an evolving situation.
“There are so many people involved, lawyers, other practices, technicians, patients, officials, and so much new information and opinion coming out hourly,” he said. “At this point it’s a 24-hour-a-day operation to get as much information as we can.”
Among the key takeaways from Tuesday’s call was that the case underlying the court ruling was based on a civil, rather than a criminal case.
“What that could mean is that if there were to be a failed transfer for any reason, the district attorney wouldn’t be coming for us,” Allemand said. “None of this is official, of course.”
Alabama’s IVF providers are now looking to local and national agencies to file amicus briefs, while they and other reproductive medicine advocates weigh whether they should look to the Alabama legislature to craft solutions to protect them and their patients.
Malizia said the group also discussed the need to mobilize patients, patient advocates, and national organizations and physicians across the country.
So far, their supporters have outweighed the detractors, though some clinics have received hateful messages since the ruling, accusing IVF providers of “playing God.”
Only about 30 fertility specialists graduate each year in the United States, making for a tightknit group in an increasingly fraught field of medicine, Malizia said. So far, she has been overwhelmed by supportive messages from colleagues around the country wanting to know how they can help.
“It feels like opening a large door and we don’t know what’s on the other side of it,” she said.
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