I’ve been wanting to talk about what is happening in the wake of last week’s Alabama Supreme Court ruling that has now completely upended in vitro fertilization in the state.
The ruling stemmed from lawsuits involving three sets of parents who were undergoing IVF treatments at a fertility clinic in Mobile, Alabama. The suits alleged that their frozen embryos were dropped on the floor and destroyed in December 2020 after someone mishandled them.
The families sued the clinic claiming wrongful death, which is unusual. In past situations like this, we’ve seen lawsuits for negligence but never wrongful death. A lower court dismissed the claims, but the Alabama Supreme Court reversed the decision and ruled the destruction of the embryos falls under the state’s Wrongful Death of a Minor law.
Fertility clinics throughout Alabama were sent into a total panic in the wake of the decision, with many shutting down entirely to avoid potential litigation. Now, real life women and men are suffering the consequences of this.
The Consequences
One Alabama woman, Meghan Cole, spoke to The New York Times’ The Daily podcast about her situation on Monday. She has a blood disorder and, therefore, cannot carry a baby. She was scheduled to have an embryo implanted into a surrogate this past Friday, but it was canceled due to the ruling.
COLE: Our doctor said I’m so sorry, but it has to be canceled. I instantly broke down in tears. I don’t think I’ve ever cried that hard in my life… I called our surrogate and had to break the news to her, the person who’s been taking hormone medications for the last three weeks… 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… I mean, redo the whole process, which would cost us another $30,000… 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. She said, you know, it feels like a death.
REPORTER: Do you feel that way?
COLE: I do in the sense of it feels like a death of our dreams to become parents.
This is insane. If I had been her or advising her as a friend, I would have gone to court as soon as the ruling came down with a lawyer saying, ‘I need a temporary restraining order on this clinic from embargoing my embryos away from me. I demand that my embryos be released to me. I waive any wrongful death claims against you. Give me my embryos right now.’
They cannot hold the embryos from rightful parents like Meghan Cole. That’s one of the things that is very annoying about this story. I’m worried that this is going to start a trend where women are going to actually lose their babies. If this woman can’t get access to her embryos, she’s going to lose those babies.
Pro-Life Concerns
I don’t begrudge my deeply pro-life friends who feel like IVF clinics are bad because of the process. Invariably what happens is the woman produces X number of eggs that get put in a petri dish and fertilized with sperm. That’s not how a normal pregnancy would take place inside of a body. Women only release one egg or sometimes two or three in extraordinary cases with twins or triplets.
Through IVF treatments, you could release 10 eggs and they could all potentially get fertilized. Then you have leftovers. I understand why some pro-life believers think this is not okay, but I guess this is where I draw the line. I don’t think a fertilized embryo outside of the uterus that has never been in its mother is the same as one that is in the mother and has a real shot at viability and life. I don’t see it the same way.
My Experience
I told my audience this a couple years ago during a conversation with Dave Rubin about surrogacy: I was able to have my own babies, but I needed IVF to conceive all three of my children.
This is a lot of information, but I have what is called a T-shaped uterus and it was leading to problems getting pregnant. After I had some testing, my husband Doug and I went to a fertility specialist who said that I would be able to carry a baby, but it would likely be very hard to conceive one. That’s why we did IVF. I thank God every day for that technology. I would not have my three amazing children had it not been for IVF.
I can’t think of a world in which any sane person would look at me and my family and say, ‘Nope, they shouldn’t be here. The world would be better if your children were not here. That would be a win for society.’ Bullsh-t. It’s a very easy argument to win when you’re zeroed in on the embryos that are in the petri dish. But when you look at the millions of children who have made it because of IVF technology, how cruel is it to argue with their existence in this world?
One footnote to my personal story is that we were lucky in that we did not produce extra embryos. I didn’t have to make the decision about what to do with potential children of mine. If it had been one or two more, I probably would have tried to have them. But if it had been 10 more, what do you do in that circumstance? I’m not blind to the ethical considerations here.
What Comes Next
If this situation continues in Alabama, Meghan Cole might not get her embryos. And who knows how many other women who would love to use the same technology I used will wind up in the same position? I think the Alabama legislature and governor are actually poised to do something about it. President Trump has weighed in saying they should. Even Rep. Matt Gaetz (R-FL) is out there saying this should be reversed.
Some hardcore pro-lifers think this is a win. I understand their position. I respect their views, but I completely disagree with them. There is a huge difference between looking at a woman and saying ‘you do not have the right to kill your own child’ and saying ‘you do not have the right to have your own child.’ That is just a completely different message politically, morally, religiously – take your pick. The latter is not going to fly.
You can check out Megyn’s full analysis by tuning in to episode 731 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.