The Impact of Alabama’s Landmark Ruling on IVF and Surrogacy

Fairfax Surrogacy is deeply concerned by the recent ruling from the Alabama Supreme Court, which has classified frozen embryos as children, citing the Bible in its opinion. This unprecedented decision has profound implications for the practice of in vitro fertilization (IVF) and surrogacy, not only within Alabama but potentially across the United States.

The Alabama Supreme Court’s decision to classify frozen embryos as children, citing theological reasoning, represents a significant shift in the legal and ethical framework governing reproductive technologies and rights. IVF and surrogacy are critical technologies for many individuals and couples facing infertility. These medical practices offer a path to parenthood that would otherwise be unattainable. The potential for increased costs, the risk of clinic closures, and the broader implications for reproductive rights nationwide underscore the urgent need for advocacy and legislative action to protect access to fertility treatments.

How did we get to this point?

The overturning of Roe v. Wade by the U.S. Supreme Court in June 2022 fundamentally altered the landscape of reproductive rights in the United States, opening the door to a wide range of debates and legal challenges concerning reproductive technologies and the status of embryos. This landmark decision removed the federal protection for abortion rights, allowing individual states to impose their own regulations and, in many cases, bans on abortion. In the wake of this reversal, states like Alabama, which has a total abortion ban, have been at the forefront of extending the debate to include the status and rights of frozen embryos used in IVF treatments.

This particular ruling stemmed from a tragic incident where three couples’ frozen embryos were destroyed after a patient at Mobile Infirmary Medical Center inadvertently accessed and dropped the specimens. The couples sought to sue for wrongful death, arguing that the embryos should be considered children under Alabama’s Wrongful Death of a Minor Act.

Initially, their lawsuit was dismissed by Mobile County Circuit Court Judge Jill Parrish Phillips, who ruled that the Act did not cover embryos outside the womb. However, the Alabama Supreme Court reversed this decision, asserting that the Act “applies to all unborn children, regardless of their location” and emphasizing that the state’s Constitution, which aims to protect “unborn life,” does not allow courts to exclude embryos from legal protection.

This landmark ruling reflects a broader legal and societal discourse on the nature of life and the extent of legal protections afforded to embryos, situating Alabama at the heart of a contentious national debate on reproductive rights and technologies.

We spoke with Attorney Andrew Vorzimer of Vorzimer/Masserman Fertility & Family Law Center, who shared the following insights:

“The Alabama Supreme Court’s ruling last week that frozen embryos are ‘children’ without exception based on developmental stage under Alabama law is a travesty of justice and an affront to science. It would allow Alabama to prosecute anyone for wrongful death for the demise of any embryo.  The decision is based on faulty legal reasoning that contradicts the established principles of constitutional and reproductive rights. It also disregards the scientific evidence and the personal preferences of those who use in vitro fertilization (IVF) to overcome infertility.

IVF is a widely accepted and proven technique of assisted reproductive technology that enables millions of people to have children of their own. IVF involves creating embryos in a laboratory by fertilizing eggs with sperm, and then transferring one or more of them to a woman’s uterus. The surplus embryos can be cryopreserved for future use, donated to research or other individuals, or disposed of according to the consent of the gamete providers.”

Implications of Alabama’s ruling on IVF and surrogacy

Classifying frozen embryos as children could have dangerous implications for fertility treatments, potentially leading to increased costs, legal risks, and even the shutdown of fertility clinics. This shift underscores a broader national discourse on reproductive rights, where the definition of life and the legal status of embryos have become central questions, further complicated by the Roe v. Wade reversal. The decision has not only impacted abortion rights but also sparked a contentious debate over the future of reproductive technologies, such as IVF, and their place within the legal and ethical frameworks of states across the country.

Attorney Vorzimer further shared, “The Alabama Supreme Court’s ruling denies the fact that frozen embryos are not children, but contingent life that requires implantation and gestation in a woman’s body. By conferring them the same legal status as born children, the ruling infringes on the rights and agency of those who undergo IVF and imposes a sectarian and moralistic view that is not universally held.

The ruling also has dire ramifications for the future of IVF in Alabama, and possibly in other states that may follow this model. It effectively prohibits the creation and storage of frozen embryos, which are crucial for the efficacy and affordability of IVF. It also subjects those who use IVF to legal perils and obligations, such as wrongful death suits, criminal prosecution, child support demands, and inheritance conflicts. It also threatens the work of fertility clinics, surrogacy agencies, attorneys, donors and healthcare professionals who offer essential services and support to those who suffer from infertility.”

The choice to build a family is a fundamental right for all Americans, regardless of where they live. We cannot, therefore, allow this dangerous precedent of judicial overreach with national implications to go unchecked. – American Society for Reproductive Medicine

“We urge the Alabama Supreme Court to reconsider its ruling and to respect the dignity and liberty of those who use IVF. We also appeal to the public and Alabama legislators to defend the rights of those who need fertility treatments, and to resist any efforts to erode them. IVF is not a crime, but a medical procedure to allow those struggling with infertility to start their families. We will not let it be abolished by a misguided and harmful decision.”

What does this mean for intended parents considering surrogacy in Alabama?

Attorney Vorzimer offered his advice on what we know currently, urging intended parents who are working with a fertility clinic in Alabama to refrain from pursuing IVF services with a gestational carrier until we know more, stating the following:

“At this time, thankfully, there should be no immediate impact.  However, if the sentiment reflected by the Alabama Supreme Court is shared by its legislature, then there may be a movement to prohibit commercial surrogacy in Alabama as part of a larger movement to restrict access to assisted reproduction.  Alabama currently has no laws permitting or prohibiting surrogacy.  Moving forward, we would strongly encourage our clients to refrain from proceeding with IVF at this time in Alabama or even using an Alabama IVF clinic to perform any transfers into a Gestational Carrier until the ramifications of this decision are better understood.”

Fairfax Surrogacy’s commitment

We encourage everyone to join us in advocating for reproductive rights and supporting those affected by this ruling. Engaging with policymakers, supporting advocacy efforts, and contributing to organizations dedicated to reproductive rights are critical steps in ensuring that family-building technologies remain accessible to all.

Fairfax Surrogacy remains steadfast in our commitment to helping families grow through surrogacy. We believe in a future where reproductive technologies are recognized for their vital role in family building, supported by compassionate and scientifically informed policies. Together, we can overcome the challenges presented by this ruling and continue to support the dreams of countless families and individuals.


About Vorzimer/Masserman Fertility & Family Law Center

Vorzimer/Masserman Fertility & Family Law Center, based in Woodland Hills, California, with additional offices in Encino, CA, and Annapolis, MD, is a boutique law firm with a national presence and an international reputation. Founded in 1994 by Andrew Vorzimer and Dean Masserman, the firm specializes in complex litigation, family issues, and reproductive legislation. Their dynamic team of attorneys is dedicated to providing exclusive, sophisticated, and reliable representation, exceeding the expectations of discerning clients. With a focus on reproductive law, family law, and a wide range of other legal areas, Vorzimer/Masserman has aggressively protected the interests of clients ranging from Fortune 500 companies to high-profile individuals, ensuring discretion and aggressive representation in sensitive matters. For dignified advice on family law, reproductive rights, and more, contact Vorzimer/Masserman at (818) 303-2438.