After years of unsuccessful attempts to have children naturally, Alaina Chipman Leeks and her husband sought help through the science of in vitro fertilization.
Doctors combined her egg and her husband’s sperm to create embryos and began the IVF process. When that didn’t work, they turned to surrogacy and now have 15-month-old twins.
But the recent Alabama Supreme Court ruling that deemed frozen embryos are “extrauterine children” has forced the Gwinnett County woman and her husband to think about what to do with their five remaining embryos.
The Alabama ruling should not immediately affect the fertility process in Georgia, but the decision has thrown the fertility industry — and those seeking help — into a state of confusion. In vitro fertilization, or IVF, is often used to help struggling parents conceive a child.
“It creates an unnatural anxiety,” Leeks said. “You just figured out one part of IVF. Now we have a successful outcome of IVF, and instead of enjoying the moment I’m having with my partner and my children, I have to go straight into fight or flight mode. There’s no breathing room to see what you’re going to do.”
The IVF process includes fertilizing an egg that can either be placed directly in the uterus or be frozen for future use. Oftentimes, unused embryos are discarded, given to other people seeking children or donated to science.
Frozen embryos in Alabama now have the same rights as any other child in that state, according to the decision, and if they are destroyed, it would be considered the “wrongful death of a minor.
The ruling only applies to three couples who sued their fertility clinic after their embryos were inadvertently destroyed, but at least three providers in Alabama have said they would stop IVF treatment as of Friday in fear of legal ramifications. The state’s attorney general, however, said Friday that he will not prosecute IVF families or providers.
The ruling could answer the legal question of when life begins, which has been a point of contention for those on both sides of the abortion debate.
Georgia Senate Rules Chairman Matt Brass, a Newnan Republican, said those are the types of discussions that need to be had post Roe v. Wade, the 1973 U.S. Supreme Court decision that had guaranteed a constitutional right to abortion.
“I think this court case puts the discussion where it needs to be,” he said, adding that he, personally, believes life begins at conception. “Because it puts the whole debate where it needs to be, which is it life or is it not?”
A 2019 Georgia law that limits when abortions can be given also granted legal rights to embryos — often referred to as “personhood.” However, Georgia’s law specified that the embryo or fetus is an “unborn child” only when it is “carried in the womb.”
Senate Majority Leader Steve Gooch, a Dahlonega Republican, said the chamber has no plans to change the law to extend “personhood” to embryos that are not in the womb.
Arvin Temkar/AJC
Arvin Temkar/AJC
State Rep. Michelle Au, a Jones Creek Democrat, said Republicans have seen that limiting abortions is a losing issue at the ballot box.
“Passing this sort of legislation — even though they say they’re not looking at it — this is going to have a huge effect on people’s ability to raise a family,” said Au, an anesthesiologist. “I don’t think (Republicans) are necessarily fully conversant on what the unintended consequences could be on people who really want children.”
The 2019 abortion law’s writers said they never considered IVF when crafting the legislation. One in 6 Americans who struggle with infertility turn to IVF, according to the National Infertility Association.
Leah Jones, deputy director of the abortion rights group SisterSong Women of Color Reproductive Justice Collection, said Georgia’s law was vague when it came to “personhood.” SisterSong has sued Georgia over the 2019 abortion law. The lawsuit is pending in Fulton County Superior Court.
“I think that, because of how it’s worded, it could shift at any moment. So that’s why Alabama is so scary, because this could change in Georgia,” Jones said.
Leeks, the metro Atlanta woman who has successful surrogacy experience, said if other states follow in Alabama’s footsteps, it could make fertility treatments even more difficult to obtain.
“There are less than 30 states (including Georgia) that actually require insurance companies to cover IVF,” she said. “So the average woman is probably paying out of pocket for this. Now you’re drawing lines of privilege and access for women who want to have children.”
Jones said she’s also seen advertisements on social media encouraging anyone who has had an embryo damaged or corrupted to contact attorneys.
“Lost embryos in a fertility clinic? You may be entitled to compensation,” one ad from the Las Vegas-based Clarkson law firm said.
That firm last year filed a lawsuit against the fertility company CooperSurgical, which issued a recall for the liquid that helps fertilized eggs develop into embryos.
“These lawsuits are trying to prove fetal personhood, but it’s a twisted way of doing it,” Jones said. “These are people who want children (and) who are struggling to have children. (Anti-abortion advocates) are using those cases to push the fetal personhood agenda.”
Anti-abortion advocates who gathered outside the Georgia Capitol on Thursday for their annual March for Life were split on whether they supported the Alabama ruling.
Claire Bartlett, executive director with the Georgia Life Alliance — which was instrumental in drafting the 2019 law and hosted the rally — said she would welcome a change in Georgia law to grant rights to all embryos, whether inside or outside of the womb.
“To me, IVF is fraught with moral issues,” she said. “I understand it because I dealt with fertility issues also, but I don’t like having a little human frozen in limbo — and for how long? It’s disturbing to me.”
Gov. Brian Kemp, speaking at a Politico Governors Summit in Washington, said he was comfortable with the idea of IVF in general.
“You have a lot of people out there in this country that they wouldn’t have children if it weren’t for that,” Kemp told Politico.
A Kemp spokesman said the governor won’t be introducing any new legislative priorities this session.
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