I Had No Good Options For My Frozen Embryos. Now, In Alabama, What I Did With Them Could Be Illegal.

For me, getting pregnant involved years of doctors’ visits, fertility drugs and false hopes. Fortunately, my story has a happy ending. Thanks to in vitro fertilization, I have two healthy sons who fill my life with joy and ensure I can’t walk through the house without stepping on a Lego or a plastic dinosaur.

Then, last year, after deciding our family was complete — because honestly, some days even two kids feels like too many — my husband and I made the excruciating choice to have our two remaining frozen embryos destroyed. And as with all things fertility-related, that decision was complicated.

According to our Atlanta-based clinic, which was charging us hundreds of dollars per month to store the embryos, our choices were to thaw and destroy them, donate them for scientific research or donate them to another couple.

Initially we ruled out discarding them; it felt wrong to dump something we’d worked so hard to create from our own bodies into the proverbial trash. I also couldn’t stomach the thought of donating them to another couple and then knowing my DNA might be somewhere out there in the world. That left one option: donating our embryos to scientific research.

But while most fertility clinics list donating embryos to science as an option, what they don’t tell you is that this is nearly impossible to do. Our clinic, for example, provided a list of five organizations to contact. Four of them were no longer accepting embryos, and the fifth declined to accept ours because we live in Georgia, which, in 2019, passed an ultra-conservative law about when “personhood” begins.

Under the 2019 law, a human embryo is a legally recognized, legally protected person in Georgia, with all the rights and protections that implies. The state even went so far as to add “unborn dependents” to the tax code, meaning I could theoretically claim my embryos as a tax deduction.

And now, my neighboring state of Alabama has gone one step further.

The utter madness of the Alabama ruling

In a first-of-its-kind ruling, the Alabama Supreme Court declared frozen embryos to be “children” and that anyone who destroys them can be liable for wrongful death. This ruling led the state’s largest hospital system, the University of Alabama system, to pause its IVF services over fears of possible criminal prosecution — and rightfully so.

During the IVF process, there are many moments where embryos can perish. Sometimes they’re implanted in a woman’s uterus but fail to result in a pregnancy. Other times they simply don’t survive the thawing process. To think that a doctor could be charged with the wrongful death of a “child” in these situations is ludicrous. Far from being akin to the harming of a flesh and blood child, these examples are sadly just part of the often heartbreaking process of IVF.

Currently in the U.S. there are an estimated 1.5 million frozen embryos, many of which will go unused. If, under the Alabama ruling, we are to view these as “children” (again, ridiculous) then that means we have an adoption crisis on our hands, with tens of thousands of “children” in need of a home. But certainly the pro-life movement has already thought of this and has a list of families willing to take over continuing to pay the embryo storage fees, or for the IVF cycles needed to bring them into the world — perhaps starting with the families of the Alabama judges who issued the ruling.

The Alabama ruling has led the state’s largest hospital system to pause its IVF program and at least two other clinics have followed suit. If Alabama’s largest IVF provider is worried about blowback from the new ruling, what does that then mean for people who, like my husband and I, wrestle with the question of what to do with their unused embryos? If people choose to thaw and dispose of their embryos (as we did), does that mean they are now open to prosecution for wrongful death? Frighteningly, the likely answer is yes.

I live less than sixty miles from the Alabama border. Many of my family members live there, including my newly engaged niece. She and her fiancé want children. And as much as I hope that goes without a hitch for them, according to the Centers for Disease Control and Prevention, about one in five married women of childbearing age with no other births are unable to get pregnant after a year, without fertility interventions. Which, if the University of Alabama’s reaction to the Supreme Court ruling is any indication, are about to become much harder to access, should my niece need them.

Then there is my home state of Georgia. The current “personhood” law was worrying enough before the Alabama ruling, but has become even more so now that there’s a blueprint for how it can be used to further control a woman’s body and to dictate the very personal decision of how and when to have a family. Alabama was the first domino to fall, but there will surely be others.

The best way I can describe the ups and downs of going through IVF is to liken it to a ride on an old fashioned carousel where you try to grab the brass ring each time around. Except the ring is a baby. Each time you feel so close — you can see it, and can imagine what it would feel like to hold it in your hands. Every miss leaves you devastated, but as the ride keeps going, you slowly allow yourself to hope again as you circle back around. You continue to repeat this cycle until you’ve managed to grab a ring or no longer have the stomach (or financial wherewithal) to continue the ride.

Adding the stress of serious legal repercussions to this process feels downright cruel, particularly when individuals already sacrifice so much along the way — their time, their money, their bodies. Candidates for IVF and their doctors should be free to candidly discuss all the available options and possibilities without the looming specter of the government in the room with them.

I was lucky on my fertility journey. Each night as I tuck my sons into bed, I am bowled over by my good fortune. Every inch of their velvety little-boy skin and flutter of their sleepy eyelids feels like a miracle. Sadly, though, because of the Alabama ruling (and the others that will surely come), many would-be parents will now never get to experience that same miracle.

Caitlin Weaver is an author and essayist based in Atlanta, Georgia. She writes for national publications including Business Insider, Well+Good, and The Every Mom. Her first novel, described as ”Big Little Lies” meets ”The Summer I Got Pretty,” is due out in June 2024. For more information, connect with Caitlin on Instagram and visit her website.

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