An Alabama hospital at the center of a legal dispute that has raised national concerns about the future of in vitro fertilization is quietly adjusting its schedule for embryo transfers. The state halted IVF procedures in February after the state Supreme Court ruled that frozen embryos could be considered children.
In an email sent to a patient, a nurse at the Mobile Reproductive Medicine Center said, “We were able to resume frozen embryo transfer, but we did not receive permission to resume IVF from our affiliated hospital, Mobile Medical Center.” Or, thawing eggs to create embryos.”
Another patient at the hospital, Katie Lofton, 33, had been waiting since last fall to have embryos transferred to her uterus in early March, when she learned the court ruling would delay the procedure. She sent a letter to her state representatives urging them to protect IVF and encouraged her loved ones to do the same.
Lofton received a call from a nurse last week saying her schedule had been rescheduled for March 26.
“We are very excited,” she said.
Still, the delays were difficult.
“Every month and every day that passes is a missed opportunity to become a parent,” she said.
The Supreme Court decision arose from a wrongful death claim against the Center for Reproductive Medicine and the Mobile Clinic. According to the ruling, in 2020, a hospital patient removed several embryos from a clinic freezer, but the temperature caused “freeze burns” to the patient's hands, causing the embryos to fall out and be destroyed. The court ruled that the state law “applies without limitation to all unborn children.”
The Center for Reproductive Medicine was one of at least three IVF providers in the state to suspend services following the court's decision. Advocacy groups and health law experts argued that the court's ruling creates legal risks for IVF providers and patients. And health care providers have questioned whether they should cover additional insurance costs.
Facing mounting pressure from local patients and a national outcry, Alabama lawmakers passed a measure to protect IVF in the state. On March 6, Gov. Kay Ivey signed a new state law protecting dispensaries from criminal or civil liability for their operations. “Let me be clear: Alabama supports growing families through IVF,” she said in her statement at the time.
Two of the three providers – Alabama Fertility and the University of Alabama at Birmingham – quickly announced they would be able to resume treatment once the law passes, but the Center for Reproductive Medicine initially decided to put IVF services on hold. A spokeswoman for the mobile clinic and clinic said it would not reopen until there was “legal clarification of the scope of immunity provided by the new Alabama law.”
Earlier this week, George Gigicos, a spokesperson for the Center for Reproductive Medicine, confirmed to NBC News that the facility has begun scheduling transfer appointments, but provided few details about the status. Gigicos said doctors, lawyers and mobile clinic staff are still reviewing the new law.
“Once they figure that out, we can either reopen or not reopen. But that decision has not been made yet,” he said. Gigicos did not respond to follow-up questions.
Patients like Robin Banks, 39, and her husband Joshua, 42, are left in limbo as hospitals stop producing new embryos.
In 2017, Robin Banks decided to freeze her eggs after learning she had ovarian cancer and that chemotherapy could affect her ability to conceive. Nearly a decade later, with her illness in remission and newly married, she was ready to start her family when her court sentence was handed down.
Before suspending IVF, the hospital had planned to create Banks' embryos in early March.
“It’s disappointing that all of this is happening just weeks before we have the chance,” Robin Banks said.
The couple moved from Colorado to Fairhope, Alabama, a city just outside Mobile, two years ago. In an interview, Joshua Banks said he wondered if he would have to uproot again and move to another state to become a parent. He said there were no other local options for IVF and traveling to Birmingham, which has many of the state's IVF clinics, would be expensive.
“The real possibility of us having to leave if our circumstances don’t change so we can have children is daunting,” he said.
Caroline Chism, 35, said she would not have been able to have her 10-month-old son without the Center for Reproductive Medicine. She and her husband had planned to implant another embryo to give him a sibling, but that dream was put on hold when her clinic went out of business.
After NBC News reported that the clinic had begun rescheduling her transfer, she requested a status update and was able to schedule a consultation about the transfer.
She said she was relieved that some services had resumed but could not guarantee anything because of the ruling.
“To think about the possibility that this problem will not be resolved and no solution will be provided, and not having access to embryos is a scary thought,” she said.