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Uncertainty looms after Alabama's IVF court ruling

MARY LOUISE KELLY, HOST:

IVF, in vitro fertilization, gives people who cannot naturally conceive and carry a pregnancy to term the chance to have children - so couples with infertility, with genetic issues, with difficulties no one can explain, same-sex couples, single folks who want babies. With the help of doctors and scientists, they create embryos that they hope will become family. Enter a first-of-its-kind ruling last week from Alabama's Supreme Court that frozen embryos are children. That has suddenly put doctors who provide IVF in Alabama on shaky legal ground and put hopeful parents in limbo. We are going to hear now from Alabama. I am joined by Dr. Beth Malizia. She's an infertility specialist at Alabama Fertility in Birmingham. Welcome.

BETH MALIZIA: Thank you.

KELLY: And we're also joined by Brittany Stuart, who is a patient at Alabama Fertility and a patient of Dr. Malizia's. Welcome to you, too.

BRITTANY STUART: Thanks for having me.

KELLY: Dr. Malizia, I'm going to let you start and give us a little bit of an overview. We are watching as some clinics in Alabama have paused IVF treatment in the wake of the Supreme Court ruling, as they try to figure it out. Are you still offering IVF treatment as of right now?

MALIZIA: We have some patients that are in active treatment and on medications that it's not safe for them to stop their treatment at this point. So we are continuing with those patients. We have put on hold frozen embryo transfer. So we have put those on hold. We hope that is a short-term hold for this week and next to let us get more and more counsel, let us get our feet under us. We are hoping to have protocols and consents in place that would allow us to move forward.

KELLY: Brittany, let me bring you in. You have a daughter born in 2019. Congratulations. And this was by IVF in Alabama.

STUART: Yeah. Dr. Malizia, I call her - you know, she's our fertility godmother, if you will. So she is directly responsible for my amazing daughter.

KELLY: Yeah. What's your daughter's name?

STUART: Her name is Emerson (ph). Yeah.

KELLY: Yeah. So your situation, as I understand it, is from that round, you still have one embryo left. And it's there in Birmingham. Is that right?

STUART: Correct. So because Dr. Malizia was conservative and careful and thoughtful, we retrieved nine eggs, seven of which were mature, five of which fertilized, and then three made it to a Day 5 embryo. That first embryo that we transferred became my daughter. We had a second embryo that we transferred - it was a frozen transfer - in 2022. At that point, I was living out of state. But what's best for the embryo is to leave it where it's at. We didn't want to move it around the country, so I flew back to Alabama and did a frozen transfer, and unfortunately, that embryo did not stick. It did not become a pregnancy. So we still have one embryo left in the freezer in Birmingham.

KELLY: And where are you now in the process? What will you do?

STUART: That's a great question.

(LAUGHTER)

STUART: I think that's the million-dollar question, right? It's hard to know what the consequences are going to be if we were to try to move the embryo. Or if we were to try to transfer that embryo in Alabama right now and it didn't become a pregnancy again, what does that mean? What does that look like? Does that mean we've murdered a child? Like that's just kind of - almost - it's astonishing. I can't think of another...

MALIZIA: Yeah.

STUART: ...Word other than, you know, it's just surreal.

MALIZIA: Yeah. Brittany brings up a really important piece of this that I think is kind of at the heart of how disturbing this news was for those of us in this world. But patients go through an extreme amount of stress just to walk through our doors. And so I really feel for those patients. I've had to make several really, really difficult phone calls in the last several days to have patients where we are holding or modifying their plan for what's safe, and those are really hard phone calls to make. I have many physicians here in my clinic. I know we're not sleeping all that well and trying to make these calls with the concern that we have for patients.

STUART: And I have received that call from Dr. Malizia, obviously, not the same circumstance, but, you know, she mentions just kind of the stress and anxiety of it. And once your body - once you have those medications and you're ready to go, so much about infertility feels like hurry up and wait. And we feel incredibly lucky that it worked and that we have our daughter and that she is this - I mean, her embryo, I must tell you, was beautiful.

(LAUGHTER)

MALIZIA: She was a beautiful little embryo, and now she's a beautiful little person.

STUART: She was a beautiful embryo, you know? But, yeah, I've got the first picture of her, and she's probably a hundred cells, right? But she wasn't a person to me at that point. So it's really hard to wrap your head around not only how this decision - how they arrived at this decision, but what happens now, and what are the consequences for families that found themselves the same way we did going, oh, wait a minute; this was supposed to be a lot easier.

KELLY: I mean, I hear from both of you, there's just so much confusion about what the situation is. I do want to note Alabama lawmakers are are apparently working to try to bring some clarity to it. My colleague spoke today with one Republican state senator, Tim Nelson. He says he's going to introduce a bill that would protect IVF treatment by making clear that embryos are not viable unless they are implanted in a uterus. Would that clear things up, Dr. Malizia?

MALIZIA: That really would. So we have been working sort of tirelessly over the last several days to get this message out. People have very, very strong opinions about the embryo specifically. But at the end of the day, we all want to see women be able to come - mothers, couples be able to have children - single women, anyone who desires to have a family. We want more families. We want more children within the state.

STUART: This is where I have a hard time because it's - this isn't just about Alabama, right? This is a nationwide conversation where we've got to understand science. And I think that if we could just get it - if we could kind of like take the temperature down a little bit and talk about this rationally, you know, where can this embryo grow and thrive, you know? And that's what we want to happen. So to limit options for families that are trying to grow, it's just really kind of unthinkable. But here we are.

KELLY: Brittany Stuart is a patient at Alabama Fertility in Birmingham. And Dr. Beth Malizia is her doctor there. Thanks to you both very much for taking the time to talk.

STUART: Thank you.

MALIZIA: Thank you so much. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Kathryn Fink
Kathryn Fink is a producer with NPR's All Things Considered.
Linah Mohammad
Prior to joining NPR in 2022, Mohammad was a producer on The Washington Post's daily flagship podcast Post Reports, where her work was recognized by multiple awards. She was honored with a Peabody award for her work on an episode on the life of George Floyd.
Sarah Handel
Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.