Recent legal developments in Alabama demonstrate that fertility care stakeholders should prepare for additional state regulation of in vitro fertilization (“IVF”) and other assisted reproductive technology (“ART”) services in states that have sought to restrict abortion access following the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (“Dobbs”).

The Alabama Supreme Court has long interpreted the state’s Wrongful Death of a Minor Act (the “Act”) to recognize the personhood of “unborn children.” In LePage v. Center for Reproductive Medicine, P.C. (“LePage”), a case involving a wrongful death action brought under the Act against a fertility clinic that inadvertently destroyed cryopreserved human embryos, the Alabama Supreme Court expanded the Act’s definition of “unborn children,” effectively providing that cryopreserved embryos are also persons and therefore covered under the Act. LePage has severely disrupted access to fertility care services in Alabama, where several health care providers have paused IVF and related services until further state guidance is issued. In fact, there is at least one pending lawsuit brought under the Act against a mobile fertility clinic.

LePage indicates that several states may be inclined to increase regulatory scrutiny of ART services in the months and years ahead. ART regulation will likely be left to the states, rather than the U.S. Congress or U.S. Supreme Court, for two reasons: (1) decisions such as LePage reflect a state supreme court’s final decision on a state police power, which the 10 th Amendment to the U.S. Constitution protects as a sovereign state activity; and (2) any proposed federal legislation that would encumber ART access in a manner similar to LePage is not likely to become law, because both presumptive presidential nominees in 2024 have stated their disagreement with the LePage opinion, and therefore either would be inclined to veto a proposed federal law to grant personhood to cryopreserved embryos. Nevertheless, fertility care stakeholders should pay close attention to pending state legislation and court decisions that could impact ART access.

The outcome of state law activity regarding ART regulation, particularly the personhood status of cryopreserved embryos, remains uncertain. Indeed, there appears to be a general divide among even conservative lawmakers and jurists on the question of whether cryopreserved embryos are persons for the purposes of state law.

For example, Alabama Supreme Court Justice Mendheim concurred with the result in LePage but urged the state legislature to clarify the definition of “unborn child” under the Act, citing that the Act, which first became law in 1872, was enacted before “IVF was even a possibility.” Further, although Alabama statutes and court precedents contain some of the narrowest legal exceptions for abortion services among the 50 states, Alabama state legislators have already amended state law with an eye toward preserving ART access. Shortly after the LePage decision, Alabama enacted SB 159, a bill to provide individuals and entities with civil and criminal immunity for the death of or damage to an embryo. However, while SB 159 arguably shields health care providers from civil and criminal prosecution, it does not regulate whether life begins at conception, nor does it grant civil immunity to “manufacturer[s] of goods used to facilitate the IVF process or the transport of stored embryos.”

Like Alabama, other states that have restricted abortion access are primed to more closely regulate ART services. States to watch include Idaho and Texas, two of the most abortion-restrictive states in the country. These states have introduced legislation that would increase regulatory scrutiny of ART, although not necessarily prohibit the practice of ART altogether. For example, Idaho House Bill 400 (2024) would “redesignate” the term “embryo” to “preborn child,” but qualify in its criminal statutes that a preborn child is “in utero.” Further, in its most recent legislative session, Texas lawmakers introduced legislation that would amend existing law that criminalizes an act against “an unborn child at every stage of gestation from fertilization until birth.” In particular, the bill would change the word “gestation” to “development.” If the bill had been enacted, this shift would have arguably provided a basis to criminally prosecute an act that harms a cryopreserved embryo, because “gestation” could be read to apply to only those embryos in utero, whereas “development” could be interpreted to mean any embryo that exists, whether it is implanted in a uterus or not.

The bottom line of the LePage decision and analogous statutory law in various states is this: In the post-Dobbs era, some state lawmakers intend to more closely regulate the fertility care industry.