Are Fertility Services in Danger?

Feb 23, 2024By Fred Silberberg - Family & Assisted Reproductive Technology Law


It’s been a big month for those working in the fertility industry and the patients who want those services.  First there was the failure by CooperSurgical to properly prepare various batches of its culture media with the correct nutrients to allow fertilized embryos to develop.  CooperSurgical provides this media to a large number of IVF clinics in the US.  The Food and Drug Administration issued a recall notice saying that nearly 1000 bottles of the culture media were defective.  It is estimated that this affected 20,000 IVF patients.  It has been reported that so far, eight lawsuits have been filed around the country by patients who claim that their embryos were damaged through the use of CooperSurgical media.  [1]
If that were not enough, we have the ruling by the Alabama Supreme Court holding that frozen embryos are children. [2]  This decision came in the context of lawsuits initiated by couples whose embryos were destroyed in 2020, when a hospital patient somehow removed the embryos from the cryopreservation tanks where they were being stored in located in Mobile, Alabama and dropped them on the floor. Thanks to the Alabama Supreme Court, now, not only are these plaintiffs whose embryos were removed able to proceed with their claims, think of all of the new litigation that will now arise against clinics that used CooperSurgical’s sub-par culture media in Alabama.  It’s a veritable field day for the personal injury lawyers there.
The ruling in Alabama has potentially significant implications for users of fertility services in that state as well as other Southern states and potentially nationwide if the matter reaches the U.S. Supreme Court.  Let’s not forget that it was that court which overturned Roe v. Wade.
When people sign consent forms prior to undergoing IVF procedures, they select options for what to do with extra or unused embryos.  No longer will anyone in Alabama be able to donate those embryos or thaw them, as this would be the destruction of children.  Fertility doctors in Alabama are going to have a hard time continuing to provide services which may result in “death” of these “test-tube children”, potentially subjecting to them to potential criminal prosecution.  And while Alabama has gotten all of the attention over this matter, the ruling isn’t necessarily creating new law.  For example, since 1986 the State of Louisiana has given legal status to embryos LA RS 9:121-133 treating them as “natural persons” under the law. LA. CC 26. In fact, this was the basis for Nicholas Loeb’s various highly-publicized, but failed, legal efforts to obtain control of embryos he created with my client, Sofia Vergara. 313 So.3d 346 (2021).   
In recent years the fertility industry has exploded.  People freeze cryogenic material now regularly. People defer parenthood until their later mid-life. Think of the number of people in the deep South who will no longer have access to these types of services, not to mention what will happen with the thousand-upon-thousands of already preserved embryos which will have to go somewhere at some point in time.  The anti-abortionists are having a field day and vowing to continue on in an effort to stop not only abortion, but also IVF treatments around the nation.
People residing in “blue states” such as California, do not have to worry about these issues – at least not yet.  California has been at the opposite end of the anti-abortion movement, and California law supports the continued use of IVF treatments as well as surrogacy.  We also have should keep in mind that when the U.S. Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health (2022) 597 U.S. 215, it held that legality of abortion is question for individual states, not the Federal government.  It should follow, therefore, that decisions concerning the legal status of embryos should also be made at the state level.  This is not to say that the rest of the country is not at risk.  The anti-abortion movement is already gearing up to challenge the ability to send abortion pills across state lines into those states where the procedure is now illegal.  It would not be surprising if this movement joins forces with the “personhood” movement in an effort to convince the court that all embryos are people.  That would spell disaster for millions of want-to-be-parents who need fertility services.  Let’s hope for a change in the makeup of the Supreme Court before this gets that far.

[1] Botched IVF Liquid Destroyed Embryos, Lawsuits Claim, New York Times, February 15, 2024.
[2] Alabama Rules Frozen Embryos are Children, Raising Questions About Fertility Care, New York Times, February 20, 2024.