Meghan Cole was looking forward to Friday this week because her surrogate was finally scheduled for an embryo transfer. But Wednesday evening, 48 hours before the procedure was set to take place, Cole received some “devastating” news after emailing her doctor, she said.
The Alabama Supreme Court had ruled a few days prior, on Feb. 16, that embryos are considered human beings, leaving IVF clinics in the state scrambling to figure out whether they could face legal penalties for discarding embryos, NBC News reported.
“(My doctor) called me like 20 minutes later and said, ‘It’s canceled. We had meetings with lawyers all day. We can’t move forward knowing that we might be open to some sort of liability or criminal prosecution if something were to happen to the embryo before it’s transferred,’” Meghan Cole, an attorney in Birmingham, recalled. “I said, ‘I’ll sign a release. I am not going to sue you. I just want this to move forward.’ And obviously, she felt terrible. It’s out of her control.”
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Already, the ruling has halted some IVF procedures across the state.
The University of Alabama at Birmingham has stopped all IVF treatments for the time being. In a statement, UAB spokesperson Hannah Echols said: "We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments.”
Alabama Fertility, where Meghan Cole is a patient, also shared a statement on social media: “We have made the impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and embryologists. … We are working as hard as we can to alert our legislators at to the far reaching negative impact of this ruling on the women of Alabama.” Alabama Fertility did not immediately respond to request for comment.
Some IVF clinics in Alabama are continuing to offer services. "I don’t see a reasonable need to (pause),” Dr. Brett Davenport, reproductive endocrinologist at Fertility Institute of North Alabama, told NBC News. He added that he's adjusted the clinic's consent forms so that patients are "aware of the implications" of the ruling.
Meghan Cole cannot carry a child for health reasons and has been working with a surrogate, who was traveling to Birmingham for the embryo transfer.
“My husband and I want a child desperately,” she said. “I, for some odd reason, got diagnosed with a really rare blood disorder and (that) causes me not to be able to carry children.”
The couple expected their surrogate to arrive the day before the transfer, and Meghan Cole had organized a warm welcome for her. They had dinner reservations scheduled, and Meghan Cole put together a care basket to help her surrogate as she recovered.
Telling her surrogate that the transfer was off felt tough. Still, the Coles felt touched by how supportive her surrogate has been.
“She’s amazing, and she’s very much on our side,” Meghan Cole said. “She said, ‘I’m with you guys until the end. You know this doesn’t change anything for me.’ So, we’re really grateful for her. She’s been wonderful.”
Initially after hearing the news, Meghan Cole hoped she could move her seven embryos to the state where her surrogate lives. But she soon learned that cannot happen.
“(The clinic is) afraid something will happen to them in transit, that one of them might die or something,” Meghan Cole said. “I’m just kind of stuck until something changes down here. Who knows how long that’s going to take?"
Even if they can move the embryos out of state, their surrogate will have to start preparing for the transfer anew. At the instruction of their doctor, she said she has stopped taking the medications.
“She has to basically have her body reset to natural,” Meghan Cole's husband, Walker Cole, said. “If we ever get good news again, we’ve got to have another ultrasound and then pay for more medication. And then she’s got to start these medications again and go through the crazy hormone-filled three weeks.”
The Coles have been grappling with tough emotions. After hearing the transfer was canceled, Walker Cole said he couldn't speak for about 20 minutes, "which is not like me."
“It’s frustrating. Obviously, we spent so much money to get here,” Meghan Cole said. “Even to prep for this transfer, we had to pay out of pocket for all of her monitoring visits to do ultrasounds. We paid out of pocket for her medication. We’re not going to get that money back.”
IVF comes with a lot of out-of-pocket costs that the Coles covered thanks to donations from family and friends and a loan against their home. Already they've spent a lot of money to get to their transfer, and the cancelation is likely to add more to the price tag.
“It is astonishing,” Walker Cole said. “The surrogacy process is more expensive, but it’s close to $250,000.”
The Coles have been on their fertility journey for a year, which has included two IVF cycles.
“It’s been a long year and a bumpy year with lots of ups and downs,” Meghan Cole said. “The financial aspect of it is difficult.”
While storing the embryos is free for the first year, the Coles will likely have to pay for it starting in May. They don't know how much that might cost, but the thought of paying for embryos they can't implant feels maddening.
“I can’t use them, and you won’t release them to me, so why should I have to indefinitely pay for them?” Meghan Cole said. "Even though these are apparently my children, I don't have access to them. I can’t just go down there and visit them."
“I never thought this would be what we were doing this week,” she added. “I thought it was going to be one of the best days of our lives tomorrow, and now we’re just devastated.”
The future of the Alabama IVF ruling on embryos
Many questions remain about the implications of the ruling, as the case that led to it was based on an unusual situation: A person walked into an unlocked storage facility at an IVF clinic in Mobile, Alabama, and dropped several frozen embryos on the floor.
The court then ruled that failure to secure the storage area violated Alabama's Wrongful Death Act because the embryos are human beings, and the law states that someone's death due to an unjustified or negligent action is a civil offense.
One implication of the ruling that remains unclear, experts said, is whether embryos created through IVF will need to be stored indefinitely — including embryos that are not viable due to genetic abnormalities and those that prospective parents decide not to use, which are usually discarded.
Paying to store frozen embryos runs between $350 to $1,000 annually, according to reproductive tissue storage company ReproTech.
Gail Deady, senior staff attorney at the Center for Reproductive Rights, told NBC News that the ruling "does not appear to create criminal liability for IVF providers." Instead, they potentially could be sued for the destruction of embryos and have to pay damages.
This legal possibility could lead to fertility clinics raising the cost of services and fewer insurers being willing to cover the treatments, Dr. Mamie McLean, reproductive endocrinologist at Alabama Fertility told NBC News, adding that it could mean reduced IVF access in her state.
Dr. Brett Davenport, a reproductive endocrinologist at Fertility Institute of North Alabama, added that paying for insurance to cover potential wrongful death lawsuits could be so high that it may prevent some providers from practicing at all.
The potential for the ruling to lead to criminal prosecution is also not out of the question, NBC News senior legal correspondent Laura Jarrett said in a Feb. 22 segment on TODAY. "Even if there isn’t a crime on the books for that right now, (some IVF providers are) worried that there could be ... so they’re just not willing to take the risk,” she explained.
Florida is considering a similar law that would allow people to sue for wrongful death over frozen embryos, Jarret added.
The ruling could also affect abortion legislation around the country. "The next step will be to say, ‘Well, if an embryo is a person (outside the uterus), clearly it’s a person in utero,” Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale Law School, told NBC News.
The Coles are speaking out about what’s happening in Alabama in the hopes that something will change and others won’t have to go through what they’ve experienced.
“It’s important to get the word out there about what’s going on down here and put pressure on those who can make a difference,” Meghan Cole said. “This is affecting so many people. It’s affecting us. It’s affecting our family.”
Aria Bendix, Laura Jarrett and Irene Byon contributed reporting.
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