The Alabama Ruling That Could Stop Families From Having Kids

from The New York Times I'm Michael. babbaro this is the. [Music]. daily today the story of how a surprise. ruling from the Alabama Supreme Court. halted fertility treatments across the. state and sent a shock wave through the. world of reproductive. health I spoke with my colleague azen. gishi about the court case itself and to.

a patient in Alabama about what it's. like to navigate The. [Music]. [Applause]. Fallout it's Monday February. [Music]. 26th Asing this Alabama ruling really. seemed to come almost out of nowhere for.

a lot of us and in a world where we. frequently track court cases and we. expect them on a certain date this. didn't fall into that category it was a. genuine legal surprise so tell us the. story behind this case yeah so the. actual incident at the center of this. case happened in December 2020 at a. fertility clinic in Mobile Alabama. basically a person ended up wandering in. into the storage room of this Fertility.

clinic which happened to be located in. the hospital they opened a tank where. Frozen embryos were stored pulled out a. vial and dropped them on the ground and. those embryos were destroyed wow these. Frozen embryos belonged to at least. three couples that we know of who were. undergoing IVF or inv vitro. fertilization to try to have a baby to. try to have a baby and so this is a. pretty unusual sounding situation we. don't know why a person was able to get.

into this room why they stuck their hand. in a tank that was holding Frozen. embryos at 360° F but the couples in the. end filed suit against the fertility. clinic and the hospital in which the. fertility clinic was located and what. should we know about the lawsuit that. they filed so the lawsuit that they. filed I mean the most important thing to. know is that they ended up filing a. wrongful death claim this law in Alabama. the wrongful death of a minor law was. established in 1872 and they argu that.

the loss of their embryos should fall. under that law H most people don't think. of an embryo in a fertility clinic. freezer as a baby or as a minor you. mentioned that law so what's the. argument made by these three couples for. why that should be the case so in one of. the couple's complaints they actually. described the embryos as quote. cryopreserved embryonic human beings. they argued that that storage room where. the tanks were being held should be.

considered the same as a daycare. facility which you know daycare. facilities are protected under state. regulations and are required to be safe. secure and closely guarded and they said. you know small children including. embryos cannot protect themselves so. they were really making the argument. that the embryos that were destroyed in. this incident were essentially their. babies and had been killed I'm curious. what we know about the motives of these. plaintiffs for using this language.

it feels like language we tend to. associate with social and religious. conservatives who have been trying to. redefine when life begins do we know if. the plaintiffs here are part of that. movement and do they share its goal I. mean the fact of the matter is we don't. know very much about these plaintiffs we. can't speak to their motivations I tried. to reach out to them and did not hear. back you know accidents happen in. fertility clinics often in those cases.

patients are either settling with the. clinics outside of court or they're. bringing negligence cases to be. compensated for physical emotional. damages in this case we see a completely. different strategy we see these couples. bringing a wrongful death suit and. they're using very specific language of. personhood to make that argument and. obviously the personhood movement in the. United States has been seeking to Define. life as beginning at the very earliest. stages in an effort to to overturn the.

right to abortion and that happened you. know in 2022 when we saw the fall of. roie Wade and once that ruling fell a. lot of people were wondering what does. this mean for IVF right Bing that. basically a case like this a case like. what these plaintiffs are arguing might. come along might gain subtraction yeah. it's The Logical conclusion to that. personhood argument okay so let's turn. to what happens to this lawsuit and how. we get to this very consequential ruling.

so two lower trial courts in Alabama. actually rejected that wrongful deaths. argument they said that these embryos. should not be considered people that. brought this to Alabama Supreme Court. and they made the opposite ruling they. said that actually these embryos should. be considered children under Alabama. state law and how does the Alabama. Supreme Court explain why it came to. that conclusion so the main judge who. issued the opinion wrote that the text. of the wrongful death of a minor Act is.

sweeping and unqualified it applies to. all children born and unborn without. limitation and we got even more insight. into the Court's thinking from some of. the concurring opinions one of the. justices wrote even before birth all. human beings have the image of God and. their lives cannot be destroyed without. effacing his glory so they're very much. taking the position that according to. the Bible these embryos should be. considered.

human life right and according to. Alabama Law and according to Alabama Law. yes so what the justices of the Alabama. Supreme Court are saying in this ruling. just to be very clear is that a. fertilized embryo even outside a uterus. outside the womb is a full-fledged life. with all the legal protections of a baby. a minor and therefore they're resetting. the clock on the entire idea of when. life starts to its very earliest.

conceivable moment so this is a narrow. ruling this applies to the three couples. in this case whose embryos were. destroyed but it sets a huge and quite. scary precedent for anyone who is. undergoing IVF anyone who works in the. fertility industry in Alabama who is. working with these embryos that are. suddenly considered children just. explain that accidents happen in. fertility clinics some sometimes an.

embryo sticks to the side of the pipet. sometimes problems happen with shipping. sometimes a biopsy is taken for genetic. testing and it goes wrong I mean there. are many many ways that these embryos. can be damaged as a result of going. through this process and suddenly this. ruling just raises the stakes. tremendously and opens up a whole Suite. of new questions about how fertility. care can even be provided in the state. of Alabama right cuz suddenly everyone. involved in the chain of custody of an.

embryo involved in IVF could very. logically worry that they could end up. being entangled in a wrongful death. lawsuit for something that based on what. you're saying might be just the routine. accidental end of an embryo's existence. yes okay so practically speaking on the. ground what end up being the. repercussions of that ruling in Alabama. pretty much immediately after this. ruling came out there was I would say. complete pandemonium you have fertility.

clinics that are suddenly looking at. basically all their processes for how. they do things wondering what their. liability is going to be now that all of. these embryos could be considered. children under Alabama state law and. then there are the people who are. currently in the middle of undergoing. fertility treatment who don't know. whether they can proceed you know people. who had retrieval scheduled to retrieve. eggs from their body people who are. waiting to have embryos trans to see if.

they will actually implant and so this. puts all fertility treatment in Alabama. into. limbo I think people just don't know. what's going to happen. [Music]. next last week not long after the. Alabama ruling we got an email from a.

woman in. Birmingham her name is Megan Cole she. told us she's a 31-year-old lawyer and. that she's in the final stages of IVF. treatment on the day she wrote us last. Wednesday she said her embryos were. scheduled to be implanted in a surrogate. just 2 days. later so I called her and asked her to. tell us her. story why don't you just start just kind. of at the beginning about you know your. experience and what it's been like to.

watch this thing come down and how you. kind of fit into this and and how it's. affecting what I understand from your. email to be like a pretty inprocess. situation yeah that you're in with your. with your. surrogate sure so back in high school I. was diagnosed with a super rare blood. disorder so between the disorder and the. medications that I'm on I can't safely. carry you know my my own.

pregnancy wouldn't be safe for me. wouldn't be safe for the baby and you. know that was something that was. devastating and something that I had to. get over and realize okay like it is. what it is and maybe I'm just not meant. to you know have my own child and then I. learned about surrogacy and so that kind. of gave me hope which obviously that. entails going through. [Music]. IBS so last year. I went through two rounds of IVF and we.

were finally matched with the surrogate. back in November and for two rounds of. IVF alone it cost us around 24,000 and. then you know when you add surrogacy on. top of that it's going to equal about. $250,000 Allin yep and we are currently. scheduled for an embryo transfer on. Friday and so you know last week we're. chugging along everything great and then.

I get an email blast and read the. opinion and was shocked why were you. shocked just explain that I just didn't. think that this was even like an issue. or a thought I didn't think that Frozen. embryos would ever be considered like a. living child outside of a uterus I mean. they're frozen clusters of cells they. can't live outside of the freezer so I. just I didn't realize that someone would.

rule this way and how quickly did it. become a question of your own. circumstance uh very. [Music]. quickly so after the shock kind of you. know settled in then I realized oh we. have a transfer schedule are the clinics. going to be kind of paralyzed because. they don't know what this ruling means. for them and are they gonna continue. with normal business so that was.

obviously a concern and then today. actually the University of Alabama at. Birmingham UAB issued a note saying that. they're cusing all IVF so at that point. I really got. scared so we're talking to you like at. 400 p.m. eastern time on Wednesday and. what exactly is the state of. communication you're having with the. clinic you know I know my clinic is.

inundated with calls right now and so I. haven't been able to get in touch with. them to kind of see what the status is. but you know we're scheduled for Friday. and I'm just gonna assume that it's. going forward until I hear otherwise so. basically the biggest day of your life. is ambiguous at this moment like will. your pregnancy begin will I be having a. kid in nine months or will I not be.

we've wanted a child for so long and and. now that we're almost. here you know and. and I'm sorry I don't want to like tear. up but to think. that a Supreme Court decision could now. take away my ability to fulfill my dream. of having a child my own child is like. really upsetting to me. [Music].

so talk a little bit about your. understanding of how this decision might. affect you and is there a universe where. it doesn't affect you right right I. think there is a situation where I'm not. affected I. mean it's not like the court said you. can't do IVF and you can't do any. transfers and and so I think there is a.

universe and I think maybe I am. currently in that Universe where. everything does go forward on Friday but. yeah I'm in limbo right now and it's. really. scary well why don't we just keep. checking in with you and we can just. kind of keep keep trying to understand. where things stand okay that sounds good. thank thank you so much for calling okay.

bye. [Music]. bye we'll be right. back so asine we just spoke with a woman. Meg who is in the Final Phase of the IVF. process with a surrogate her transfer. was scheduled for Friday February. 23rd and when we spoke with her she said.

the entire process is now uncertain she. has no idea if it's going to move. forward I'm curious how many people in. Alabama are in that kind of situation. now and what their options are if. they're involved in IVF in the state so. here's what we know there are at least. five IVF clinics in the state of Alabama. they performed at least 1,00 IVF. procedures in. 2021 since the ruling came out pretty.

much in Rapid succession we started. hearing from clinics that said they were. shutting down some or all of their ibf. procedures it started with the. University of Alabama Birmingham which. we should say by the way Meg when she. heard about that was really spooked yep. and then just yesterday we found out. that the Center for Reproductive. Medicine and mobile so that's the. fertility clinic at the center of this. suit is also shutting down operations. and a third Clinic has also announced. that as well so now there are three. major fertility clinics in Alabama. saying they aren't moving forward with.

IVF treatments and they're basically. just shutting the whole thing down for. now they're shutting the whole thing. down and because they fear liability. because they fear liability because all. of a sudden these embryos that they are. handling could be considered people. under state law well so if you're. somebody trying to do IVF in Alabama you. have your fertilized eggs frozen in one. of these clinics that have paused their. work what can you do what should you do. I mean I think people are sort of. panicking and what wondering how they. can possibly move forward I mean one.

option would be get your embryos out of. the state out ship them out ship them. out to another fertility clinic out of. state that can proceed with your. transfers but my colleague just reported. that one of the biggest embryo shipping. companies has just said that they too. don't want to accept the liability that. this new ruling imposes on them so in. case they were to be involved in. damaging in case something happens in. the process of shipping could they be. held liable under this interpretation of. the wrongful death Statute in Alabama so.

everyone is spooked you know what could. this mean for their personal. responsibility in handling these embryos. so it feels safe to say that in. Alabama this ruling has pretty much. brought the entire IVF world or most of. it to a grinding Hall and I think the. question for people outside of Alabama. is what are the chances that a ruling. like the one that happened there could. happen. elsewhere in the country especially as.

you explained earlier aine in a world. where there isn't roie Wade which had. been viewed as a kind of legal buffer. against efforts to go after something. like IVF so my colleague Sarah and I. actually spoke with a head of a. fertility clinic in Iowa who said I feel. for the patients and the fertility. providers in the state of Alabama I do. not think that this is going to be. limited to that state she's in a state. where there is a six- we abortion ban on.

the books it's being challenged right. now but I think fertility providers. across the country are worried about. what this could possibly mean for them. in states that have made it clear that. they want to ban abortion there is of. course an irony here which is that we. think of the personhood debate as. primarily being around abortion and. ending pregnancies IVF is about creating. pregnancy it's about creating life. babies so it would seem like something. that social and religious conservatives.

would Embrace not try to restrict yeah I. mean what you just described as the. split that we're currently seeing play. out in the Republican Party many. Republicans are saying that they oppose. this decision they're trying to distance. themselves from it I mean you have Mike. Pence who went through IVF with his wife. has been outspoken about it saying that. you know IVF needs to be protected um my. Pence being a very prominent social. conservative yes we have legislators. even in the state of Alabama saying that. IVF needs to be protected in that state.

and you know they know that most. Americans including Republicans support. IVF for the reason that you said it's. helping people start families but the. reality is that the extreme elements of. the anti-abortion movement in this. country are ecstatic about this ruling. the alliance defending Freedom has said. that this is a tremendous victory for. life this really supports the arguments. that they have been pushing for decades. to try to ban abortion so that is a. tension that's playing out in the.

conservative world it's really unclear. as of now whether IVF will become the. same kind of battleground in this. country that abortion has become we have. good reason to think that it won't. because of the popularity of I but what. we do know is that that extreme point of. view has prevailed in Alabama and that. has very real consequences for fertility. patients in that. state azen thank you very much. thanks.

Michael hey this is Megan hey Megan it's. Michael Barbaro how are you hey how are. you I'm. good so as promised we wanted to check. back in with you yes and it's now Friday. afternoon this was the day that your. transfer was scheduled to happen so I. wonder if you can just catch us up on.

what's happened since we last spoke with. you a couple days ago sure um so later. on that night like at 7 o'clock I got a. response but it was kind of like a. lawyer response and a very much of we. don't really know yet what's going on. you know uh we'll be in touch as we. figure things out so after I got that I. just sent an email directly to my doctor. and I said you know you got to shoot me. straight what's going on on is the. transfer going forward and then about 20.

minutes after I sent that email I saw my. Clinic's number pop up on my phone and. instantly knew that it was going to be. bad news um and and our doctor said I'm. so sorry but you know it's it has to be. cancelled I instantly broke down in. tears um I don't think I've ever cried. that hard in my life my husband is very. outgoing and very talkative and talk to. anyone and he was basically silent you.

know for 20 30 minutes he just didn't. know what to say and was trying to. process this decision and the. cancellation of the transfer that we've. been waiting for for over a year and. then you know I called our surrogate and. had to break the news to her um the. person who's been taking hormone. medications for the last three weeks and. dealing with that while also dealing you. know with her own family and had to. break that news and she was obviously. devastated as well. after you processed this after you got.

off the phone with the surrogate what. was going through your. head it. was how are we going to make this happen. how are we going to get these embryos. out of this state and have our transfer. move. [Music]. forward but as of now we are unable to. move our embryos out of the state. because the clinics are worried that.

there might be destruction of an embryo. um you know obviously through the. process of transporting them out of. state and that could open them up to. liability it could open us up to. liability um so that was not an option. either so your clinic is saying you. can't use your embryos because of this. ruling and it's also saying because of. this ruling you can't move your embryos. it's basically for now shutting down. your off options to conceive a child I.

mean the only option would be for me to. go through an IVF cycle out of state my. third IVF cycle get those embryos Frozen. genetically tested again the whole. process I mean redo the whole process. which would cost us another. $30,000 and that wouldn't be something. that we would be able to do immediately. I mean that would take at least another. year right which every every when you're. in this process every day seems like a. year we've been waiting and waiting to.

have a child and we were on the cusp and. so the thought of having to wait you. know another year or even another six. months is is really hard for. [Music]. us how did you end up spending this day. Friday the day where you thought that. you were going to begin a journey toward. WS having a child and. instead you didn't because of this.

ruling I mean I spoke with my mom my my. dad and my sister all today um one thing. that my sister said you know is she's. been angry as well and she said it feels. like a death in the family like we were. all excited to have the possibility that. a child would be coming into our family. and she said you know it feels like a. death do you feel that. way I do in the sense of it feels like a.

death of our Dream to become. parents you know we were almost there. and so now that dream has it seems less. obtainable at this. moment well Megan thank you. for sharing all this with us of course. in our first conversation and now in. this second one and I I wish you and. your husband the very best Y no problem. thank.

[Music]. you over the weekend both Democratic and. Republican lawmakers in Alabama. including its conservative Governor K. Ivy said they would consider legislation. to protect IVF treatments from the. Court's. ruling but so far it's unclear when such.

legislation would be voted on and. whether there's enough support for it to. [Music]. pass we'll be right. [Music]. back.

here's what else you need to another day. I was just informed that we got double. the number of votes that has ever been. received in the great state of South. Carolina so that's pretty good so it's a. record time in his latest victory in the. Republican primary Donald Trump soundly.

defeated Nikki Haley his only remaining. opponent in her home state of South. Carolina by 20 percentage points the. outcome Haley's fourth straight defeat. to Trump solidified Trump's status as. the party's de facto nominee like this. and I just want to say that I have never. seen the Republican party so unified as. it is right now never been like. this and a Manhattan Jury has found that.

the leaders of the NRA the country's. most powerful gun rights group engaged. in a yearslong pattern of financial. misconduct and Corruption the verdict. amounted to a public rebuke of the. organization's longtime CEO Wayne laier. who resigned from the NRA last month. during the trial it was revealed that. laier had used NRA funds to pay for.

millions of dollars in personal expenses. including high-end clothing yacht rides. and luxury flights for himself and his. [Music]. family today's episode was produced by. Eric krupy Alex Stern cydney Harper and. Mary Wilson it was edited by Patricia. willins fact checked by Will pel.

contains original music by Maran Lozano. Diane Wong and Dan Powell and was. engineered by Alyssa Moxley our theme. music is by Jim brunberg and Ben. lansberg of. [Music]. [Music]. wonderly that's it for the daily I'm. Michael babro see you.

[Music]. tomorrow.