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Opinion | Alabama is adding salt to already open wounds

Will we continue to nitpick families’ most painful experiences and attempt to pass blame?

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Tuesday February 27, 2024. The date had been marked on my friend’s calendar for months. It was the date she and her husband were scheduled for their last shot at a pregnancy. A beautiful baby embryo—the last of my friend’s embryos—would be transferred into her uterus by her medical team. If her body permitted the embryo to develop and grow, she would have the baby she had been praying to call her own for years. If not, well, it was their last shot.

Speaking of last shots, she was just finishing up the intensive (and expensive!) round of hormone shots necessary to prepare her body to receive the embryo transfer when the Alabama Supreme Court announced its decision that embryos, or “extrauterine children” should be considered minor children for purposes of wrongful death cases. A few days later, less than a week before her scheduled transfer, her phone rang. On the other end of the line, she heard her doctor telling her that her embryo transfer was canceled and that she would not have the chance to be a mother right now. For how long? Who knows.

It’s irrelevant that this embryo—her sweet little embryo—would never be able to grow or develop beyond an embryo without her womb. That it would never be able to live outside of the freezer where it currently sat. That its development would be arrested at a cluster of cells unless providers could transfer it into a mother’s uterus. Right now, under new Alabama case law, the liability for the clinic is just too great. After all, this is a pro-life state.

The decision hit close to home for me and my family, not just because our friends were being so directly affected, but because the day before the clinics across the state shut down IVF procedures, my husband and I had placed our last DNA sample in the mail to a lab that would develop a genetic probe for our own IVF procedure.

I was born with a rare genetic mutation that causes extreme muscle weakness—it’s degenerative, but not deadly. It’s certainly nothing I’d like to pass along to my children. Which is why I was relieved when we learned that scientists could extract my eggs, fertilize them with my husband’s sperm, and develop embryos outside the womb that could then be biopsied and tested to nearly eliminate the risk this rare mutation.

It isn’t just my mutation that this process can prevent—PGT-A and PGT-M testing can be used for all sorts of genetic anomalies: Down Syndrome, Turner’s Syndrome, spinal muscular atrophy, Tay Sachs Disease, cystic fibrosis, Fragile X syndrome, Huntington’s disease and even some hereditary cancers. It’s truly a game changing science in the healthcare industry, and a life-altering science for families across Alabama.

But under Alabama’s new case law, my doctors won’t help us prevent our baby from inheriting this disease out of fear that they could be sued, or worse, charged with murder. In fact, I’m writing this opinion piece under an anonymous byline out of fear the mere admission of this process could impact me and my family, or impact my friend and her family.

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You see, what the Alabama Supreme Court has done is opened the door to an incredibly slippery slope of legal arguments—and they’ve done it in a state that’s itching to prove a point about just how pro-life we can be, and a state that’s already attempted to criminalize other aspects of reproductive health.

Because if you can be sued for the wrongful death of an embryo, why can’t you be prosecuted criminally for the embryo’s murder? Who cares for the embryos if the parents can’t, or after the parents are gone? Will miscarriages (whether resulting from fertility treatments or natural conception) trigger DHR investigations for the parents’ other children as it would if a child died? Will parents lose custody of their children due to fertility services? Will we continue to nitpick families’ most painful experiences and attempt to pass blame and add salt to already open wounds?

The fact of the matter is this decision is drastically affecting families across the state right now. We’ve beaten the “decisions are between a woman and her doctor” argument to death, but I’m bringing it back to life to beat it to death again. These are personal decisions. They’re family decisions. And as terrifying as it is to admit, the Alabama Legislature is the only thing that can make it right—and they owe it to all the little embryos to do it fast.

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“What we’re trying to do right now is just play lawsuit whack-a-mole,” Rep. Chris England said.