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  • Writer's pictureThe San Juan Daily Star

For women undergoing IVF in Alabama, what now?

The University of Alabama at Birmingham’s Women & Infants Center, which halted in vitro fertilization procedures after a state Supreme Court’s ruling that embryos in test tubes should be considered children, on Feb. 22, 2024. (Charity Rachelle/The New York Times)

By Eduardo Medina

Natalie Brumfield, 41, cried as she read about the Alabama Supreme Court’s ruling that embryos in test tubes should be considered children. A mother of seven, including two babies conceived through in vitro fertilization, Brumfield felt that one of her cherished beliefs as a Christian had been affirmed: Life, she said, begins when embryos form.

Emily Capilouto, 36, also cried because of the ruling, but her tears were prompted by despair. She had struggled for years to have a child. Now she was nearing the end of an IVF cycle, when one of the embryos she and her husband had produced would be transferred to her uterus. But last week, she learned that her clinic at the University of Alabama at Birmingham health system was halting IVF treatments in response to the ruling.

“I don’t know what this means now,” Capilouto said last Wednesday, minutes after learning that her dream of having a child would be indefinitely suspended.

Questions like hers are echoing across the country after the court’s ruling, which was handed down Feb. 16. The potential national implications remain unclear, but many women in Alabama are wondering how this new classification for embryos — one rooted in a religious belief — will affect their own journeys toward motherhood, a process that for many who seek IVF is already filled with emotional and physical pain.

In interviews last Wednesday, a number of women in Alabama who recently underwent in vitro fertilization or were in the middle of treatment said that they felt abruptly stuck in limbo.

Some who recently had children through IVF said that they were afraid to do anything with their extra embryos from the process, which are stored frozen in facilities across the state.

Others wondered whether they would now have to pay a significant amount of money to keep their embryos in permanent storage, even those with chromosomal abnormalities that would lead to a miscarriage if transplanted. And they asked, would disposing of unused embryos, or even moving them out of state, lead to criminal charges?

“To declare embryos children is to dismiss what people go through to hold a baby in their arms,” said Veronica Wehby-Upchurch, 41, who has one son and two frozen embryos in storage. “An embryo in a dish is not even the start line, and a pink line in a pregnancy test isn’t the finish line.”

Wehby-Upchurch, who lives in Homewood, Alabama, said she had half-joked with friends who also went through IVF about whether she should now list her frozen embryos on her income tax return and her health insurance. Because of the court ruling, she said, “the questions aren’t crazy.”

Women who hold anti-abortion views, like Brumfield, said the ruling reflected the values laid out in Proverbs 31-8: “Speak up for those who have no voice,” Brumfield said, adding that she was relieved that the decision would prevent embryos from being destroyed.

The irony, some women said, is that the ruling, whose consequences fertility clinics are still assessing, has forced many couples to pause their IVF treatments and suspend their ticket to parenthood. The University of Alabama at Birmingham said in a statement Wednesday that it was halting the procedures to “evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments.”

Another provider, Alabama Fertility Specialists in Mountain Brook, outside Birmingham, said Thursday said that it would not offer “new IVF treatments due to the legal risk to our clinic and our embryologists.”

Kayla Lee, 33, of Birmingham, said she spent nine years, $80,000 and dozens of hours at doctors’ offices trying to have a child. After several miscarriages, she was a few days away from finally having a viable embryo transferred. But on Tuesday night, Lee received a jolting call.

The doctor from Lee’s clinic at the University of Alabama at Birmingham said that IVF treatments had to be put on hold because of the ruling.

“I’m so sorry,” the doctor told Lee, who held the phone to her cheek and cried, fuming that a court decision seeking to protect lives had caused her to lose her chance at creating one, at least for now.

“This is my life. This is my body,” Lee said, her voice breaking. She added, “It’s not our fault that we can’t reproduce without assistance.”

Kate Choban Gilbreath, 37, who lives in San Juan, Puerto Rico, said she had completed her in vitro treatments at the Center for Reproductive Medicine at Mobile Infirmary. That was where the plaintiffs in the Alabama court case — several couples who had gone through IVF — had embryos stored until a hospital patient removed them from tanks of liquid nitrogen and dropped them on the floor, destroying them.

The majority opinion in the case said that a state statute allowing parents to sue over the wrongful death of a child also applies to “unborn children.”

The center announced Thursday that it, too, would halt IVF treatments, starting Saturday.

Gilbreath, who has an 8-month-old daughter, said she signed paperwork late last year granting the center in Mobile permission to dispose of her remaining embryos, and now felt as if she had dodged the dilemma that other couples are now facing.

Gilbreath and many of the other women interviewed for this article said that while they felt angry about the court ruling, they also felt enormous empathy for the couples involved in the case.

“That’s horrific, that someone stumbled into storage and destroyed their embryos,” said Julie Cohen, 38, of Mountain Brook. While she felt very attached to her own embryos, she added, “all of my embryos are the potential of babies, but they’re not babies yet.”

Cohen said she felt terrified about the ruling and the questions that couples could soon face, over issues like what rights they have over their embryos.

AshLeigh Dunham, a lawyer in Birmingham who specializes in cases involving assisted reproductive technology recently had a daughter through IVF treatment. Dunham said that her clients who were interested in so-called embryo adoption — acquiring embryos from couples who produced them through IVF but did not use them — had phoned her in a panic this week, asking questions that no one quite knows the answers to yet. Will Alabama allow embryos to be sent out of state? Are fertility clinics still going to want to operate in Alabama?

“We’re losing doctors. We’re losing clinics. We’re losing research,” Dunham said. “And the ones who may possibly afford it, they’re going to go elsewhere.”

Even so, Brumfield said her state was heading in the right direction. She viewed her daughter Eloise, 4, as evidence that preserving all embryos was worthwhile. Her embryo had been given a poor grade, she said, but had nonetheless developed into a fetus and eventually a healthy child, whom Brumfield called “my strongest baby ever.”

Capilouto said she was afraid she would not have another chance to become a mother through IVF in Alabama.

On Wednesday, when she found out her treatment was halted, she dropped to the ground in distress and called her mother, who had gone through IVF in the ’80s and then decided to adopt Capilouto after the treatment did not work.

“We’ll find a way,” her mother said on the phone. “I’m sorry it has to be so hard.”

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