The Alabama Supreme Court ruled earlier this year that frozen embryos can be considered children under state law, a decision critics say could have widespread implications for fertility treatments.
The decision was issued in a pair of wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic. The justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location,” according to a PBS News article.
The ruling came with many concerns and controversy, says Gwen Bouie-Haynes, PhD, LMSW, executive director of the NASW Alabama and Mississippi Chapters.
In March, Alabama Gov. Kay Ivey signed a bill (SB 159) aimed at restarting in vitro fertilization (IVF) services in the state in response to the high court’s decision.
Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, said in a statement that while they are “relieved” clinics in Alabama can restart IVF treatment, “this legislation does not address the underlying issue of the status of embryos as part of the IVF process,” says an article in the Alabama Reflector.
Bouie-Haynes said the Alabama chapter connects with community organizations in the state that support reproductive rights.
“We have been very careful in our approach (to this issue) because we don’t want to be accused of helping people in what might be deemed as abortion in the state of Alabama, because the state has very restrictive laws,” Bouie-Haynes said.
Abortion is strictly illegal in Alabama unless there is a serious health risk to the pregnant woman.
“Our position is we will advocate to the fullest extent for person’s seeking assistance in IVF,” Bouie-Haynes said. While SB 159 is in place, much more advocacy work is needed to address the reproductive and emergency care of women, she said.
She noted SB 159 is “very complex and vague.”
Anytime the rights of people are affected, it’s a concern, she said. “We believe in women’s rights that are being impacted. It’s a priority of the chapter to educate the community with other organizations about the bill itself.”
“This is just another way to block access to reproductive and emergency care for women,” she said. “We are always very much concerned about the rights of people being misaligned with the bill’s intent.”
“We surveyed quite a few (fertility) clinics and what we are hearing is that professionals do not want to be accused of the criminal act of a baby dying,” she said. “They are trying to determine the consequences.”
Much of the confusion centers on the definition of when life begins, Bouie-Haynes said. Oversight of reproductive rights from a federal perspective is needed. “When you give control to the states, you lose a lot of standards of care, recognition and accountability. We want women to have the right to make their own decisions. That is the outcome we want.”
Fetal Personhood Bills
The issue of supporting or criminalizing IVF treatments is impacting other states as well.
Fetal personhood bills had been introduced in at least 14 state legislatures during their ongoing 2024 sessions, according to the Center for Reproductive Rights and the Guttmacher Institute. This marks the latest phase in an uptick in such bills since the U.S. Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision overturned the national right to an abortion in the U.S.
A Mother Jones story noted the North Carolina Republican Party, in its official 2024 platform, says, without qualification, that it opposes the destruction of human embryos.
However, NASW North Carolina Chapter Executive Director Valerie Arendt says she is hearing otherwise.
“Our House Speaker, Tim Moore, said earlier in the legislative session that he did not foresee any legislation coming out either for the protection of or to remove the protections for IVF in North Carolina,” Arendt said.
She added that U.S. Sen. Thom Tillis, R-N.C., has come out in support of IVF procedures.
Should the national GOP make a move on the topic, it is more than likely North Carolina lawmakers would follow suit, she said.
“It comes down to reproductive rights,” Arendt explained. “It’s in our Code of Ethics that clients or individuals have their right to self-determination. So when it comes to reproductive rights, I think IVF goes along with that.”
For those having difficulties conceiving naturally, IVF is a scientific and medical method that has been developed and supported over the decades that allows individuals to become pregnant, Arendt noted.
“That’s related to reproductive rights and reproductive justice,” she said. “The ability to use IVF to allow individuals to become pregnant, I think, is all part of that. NASW and the chapter would support the use of IVF and reproductive freedom.”
North Carolina in 2023 passed a bill that outlaws abortion in the state after 12 weeks of pregnancy.
“Last year, we very much opposed the ban on abortion,” Arendt said. “A big piece of that is around our efforts to get out the vote.”
“We will do everything we can in the upcoming legislative session (to oppose) any further (abortion) bans like South Carolina, which has a six-week abortion ban.”
“Reproductive justice will always be up there with some of the most important issues we pursue in the North Carolina legislature and general assembly,” Arendt said. “It’s one of our top issues and it will always be at the top of our legislative agenda to protect the rights of individuals to make their own decisions when it comes to reproductive health.”
For more information on NASW’s policy stance on reproductive rights and criminalization, read the blog, “Criminalizing Abortion: Frightful Consequences for Marginalized Women” by Mel Wilson, MBA, LCSW, NASW senior policy adviser.