Alabama ruled frozen embryos are children. Here’s what it could mean for embryos frozen across the state

In this October 2018 photo, a container with frozen embryos and sperm being stored in liquid nitrogen is shown at a fertility clinic in Fort Myers, Florida. (AP Photo/Lynne Sladky)

In this October 2018 photo, a container with frozen embryos and sperm being stored in liquid nitrogen is shown at a fertility clinic in Fort Myers, Florida. (AP Photo/Lynne Sladky) Lynne Sladky/APCNN — 

When Kristia Rumbley, a mother of four living in the Birmingham area, first heard about the Alabama Supreme Court’s controversial ruling on frozen embryos, her first thought was of her own.

Rumbley, 44, says she has three embryos frozen at a local fertility clinic. When she faced secondary infertility after the birth of her first child, she and her husband turned to in vitro fertilization to expand their family. They welcomed twins from the procedure in 2016 and another child in 2021.

The process left three frozen embryos unused. Rumbley and her husband are done expanding their family, so they’ve been storing the embryos until they can decide exactly what to do with them.

The process of artificial insemination of an egg in an IVF clinic. Reproductive medicine, in vitro fertilization

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While it’s unclear exactly how many frozen embryos are in Alabama, it’s estimated there are over a million frozen eggs and embryos across the United States, according to TMRW Life Sciences, a biotech company that provides management of frozen eggs and embryos.

But the state Supreme Court’s ruling has thrown the future of those embryos and IVF into chaos. While some lawmakers work to safeguard IVF, clinics in the state have shut down services and patients, including Rumbley, are scrambling to ship their frozen embryos to other states.

Here’s what we know so far about the possible future of the frozen embryos currently stored in Alabama.

Kristia Rumbley poses in her bedroom, in Birmingham, Alabama, on February 23.

Kristia Rumbley poses in her bedroom, in Birmingham, Alabama, on February 23. Dustin Chambers/Reuters

Why and how IVF produces frozen embryos

Since it was developed in the 1970s, IVF has become a popular solution for parents struggling to conceive and those using surrogacy to have children.

“For a sizeable portion of our infertility population, IVF is a patient’s best and often only option,” Andrew Harper, medical director of Huntsville Reproductive Medicine in Madison, Alabama, told CNN. Around 2% of babies in the United States are born through IVF, CNN previously reported.

During the procedure, an egg is removed from the patient’s body and combined with sperm in a laboratory. The resulting embryos get transferred into a person’s uterus in hopes of leading to pregnancy. But only some of the eggs exposed to sperm will be fertilized, and of those, only a small fraction will develop into a mature embryo.

Because of this inefficiency, doctors often try to fertilize more eggs than needed. “The science behind IVF really shows that one single fertilized egg is not enough,” Eve Feinberg, associate professor of obstetrics and gynecology at Northwestern University’s Feinberg School of Medicine, previously told CNN.

If her patients say they want two or three children, Feinberg encourages them to have between two to four embryos frozen for each, she said.

In some instances, patients may choose to freeze embryos instead of implanting them right away. Freezing embryos allows medical staff to perform genetic testing – which is especially crucial for patients who chose to pursue IVF because they have a family history of certain genetic conditions.

Cancer patients who risk losing their fertility during treatment might also preemptively freeze eggs or embryos before undergoing treatment. And parents may choose to freeze embryos after IVF to delay pregnancy for a number of reasons, Feinberg previously told CNN.

Rumbley only underwent one round of IVF in 2015. A total of six healthy embryos were produced that resulted in the birth of three children.

Doctor Katarzyna Koziol injects sperm directly into an egg during in-vitro fertilization (IVF) procedure called Intracytoplasmic Sperm Injection (ICSI) at Novum clinic in Warsaw October 26, 2010. Bishops of Poland's influential Roman Catholic Church have branded in-vitro fertilization (IVF) "the younger sister of eugenics" in a letter aimed at swaying lawmakers ahead of a parliamentary debate. REUTERS/Kacper Pempel (POLAND - Tags: HEALTH RELIGION)

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But keeping embryos frozen indefinitely can quickly become expensive: Patients must pay a yearly storage cost, which can range from $500 to $1,000, according to Connecticut-based Illume Fertility. The embryos can be donated to other families who are unable to conceive naturally or donated for scientific research, according to Harvard Medical School. They can also be destroyed.

Ruling leaves frozen embryos in ‘cryogenic limbo’

When Alabama’s top court ruled frozen embryos are legally children and people can be held liable for their destruction, it complicated the options available to families.

At least three Alabama clinics have paused certain IVF operations for the time being due to legal concerns. Democrats in the Alabama state House, meanwhile, introduced a bill Thursday that would declare “any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purposes under state law.”

Rumbley says the choice is highly personal -– and it’s one she and her husband aren’t ready to make yet. “I would be devastated if they were taken away from me and given to another family,” she said. “I know I won’t have them, but I think I need to be completely ready before I decide what to do.”

File photo dated 11/08/08 of embryos being placed onto a CryoLeaf ready for instant freezing using a vitrification process for IVF.

In this 2008 photo, embryos are placed into a CryoLeaf ready for instant freezing using a vitrification process for IVF. Ben Birchall/PA Wire/AP

“If they have the same rights as a child who’s born, then that would mean that the government has the same right to take a child away from me if they feel like they’re neglecting or abusing them,” she went on. “And I don’t know what their definition of neglect or abuse when it comes to an embryo would be – maybe being frozen for seven years is neglect in their eyes.”

Seema Mohapatra, a law professor at SMU Dedman School of Law who specializes in health law and reproductive rights, told CNN “typically, embryos are regarded as property,” she said. “The owner of that personal property can do what they want with it.” But now, in Alabama, those embryos are “akin to children.”

The unprecedented ruling also leaves open the question of who will pay for the long-term storage of frozen embryos, Mohapatra said.

Rumbley is hoping to move her embryos to Massachusetts, but says she hasn’t been able to contact the hospital where her embryos are currently stored to find out if she can ship them using a third-party company or transport them herself.

“We don’t know, if we move them, if something happens, are we criminally negligent?” she said. “But I do know that I don’t want them left in a state where they could potentially not be in my control.”

Lauren Bowerman, a Birmingham-based writer and editor who has had one daughter born through IVF and has five embryos frozen at the University of Alabama at Birmingham’s clinic, told CNN while she is “hopeful” IVF will continue to be possible in the state, “if it comes down to it, we would move our embryos out of state in order to move forward.”

“We fully intend to use every one of our frozen embryos, so we will do whatever it takes so that we can have them,” she said. “For us (and I know for many IVF couples) it is not just the emotional impact of a delay like this; there are also many timeline considerations to growing our family, so a delay and legal battle like this can feel particularly scary and frustrating.”

At least two cryostorage companies – Seattle Sperm Bank and CryoFuture – told CNN via email they have offered to transfer frozen embryos from Alabama at a reduced cost in the wake of the ruling.

An embryologist is seen at work at the Virginia Center for Reproductive Medicine, in Reston, Virginia on June 12, 2019 - Freezing your eggs, getting pregnant after the age of 50, choosing the baby's sex: when it comes to in-vitro fertilization and other assisted reproduction procedures in the United States, would-be parents are spoilt for choice. This isn't the case in many other countries, including France, which is hoping to pass legislation that would let single women and lesbian couples benefit from these technologies for the first time. (Photo by Ivan Couronne / AFP) / TO GO WITH AFP STORY by Ivan COURONNE, "In US, relaxed IVF laws help would-be parents realize dreams" (Photo by IVAN COURONNE/AFP via Getty Images)

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The Medical Association of the State of Alabama, which weighed in before the court’s decision, has warned the ruling will create an “enormous potential for civil liability” for fertility specialists because embryos can be damaged or become unsuitable for pregnancy at any time during IVF. The association also noted it could mean people are unable to discard embryos, even if one or both parents die.

Alabama Attorney General Steve Marshall’s office has said it has no intention of using the ruling to prosecute IVF providers or patients.

Still, Harper, the medical director in Madison, told CNN his facility is currently continuing IVF procedures but has paused the destruction of embryos.

His facility will also transition to storing embryos at a Minnesota cryostorage company instead of onsite. The facility still has “50 to 70 cohorts of embryos” that have been “abandoned” for as long as 15 years, he added.

“The consent says clearly if the embryos have been abandoned for five years, that the practice reserves the right to discard them,” he explained. But the court ruling has left those frozen embryos in “cryogenic limbo.”

“It’s gonna be someone’s problem long after I’m gone,” he said.

For Bowerman, the decision and resulting delay in her own embryo transfer has left her “deeply frustrated and grieved.”

“It’s scary to think that this process might not have been possible for us and that our daughter would likely not be here if legislation like this was enacted at the time,” she added.

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