Accidents, Lax Rules and Abortion Laws Now Imperil Fertility Industry

To the fertility patients whose embryos were destroyed at an Alabama clinic, the circumstances must have been shocking. Somehow, a patient in the hospital housing the clinic had wandered into a storage room, pulled the embryos from a tank of liquid nitrogen, and then dropped them on the floor — probably because the tank was kept at minus 360 degrees.

The bizarre episode was at the center of lawsuits filed by three families that eventually reached the Alabama Supreme Court. On Friday, a panel of judges ruled that the embryos destroyed at the clinic should be considered children under state law, a decision that sent shock waves through the fertility industry and raised urgent questions about how treatments could possibly proceed in the state.

Yet the accident in the Alabama clinic echoes a pattern of serious errors that happen all too frequently during fertility treatment, a rapidly growing industry with little government oversight, experts say. From January 2009 through April 2019, patients brought more than 130 lawsuits over destroyed embryos, including cases where embryos were lost, mishandled or stored in freezer tanks that broke down.

Those errors have taken on new gravity as the anti-abortion movement aims to extend “personhood” to fetuses and embryos conceived through in vitro fertilization, arguing that they are “unborn children” and bringing cases to an increasingly polarized judiciary open to considering the idea.

“When things go wrong with I.V.F., it opens a window for this kind of strategy,” said Sonia Suter, a law professor at George Washington University who has studied in vitro fertilization litigation. “To the extent that there is little regulation, it does provide an opportunity to promote the personhood agenda.”

Denise Burke, senior counsel with the Alliance Defending Freedom, which opposes abortion rights, called the Alabama decision “a tremendous victory for life” that protected “unborn children created through assisted reproductive technology.”

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