I.V.F. Threats in Alabama Drive Clinics to Ship Out Embryos

An emerging movement against in vitro fertilization is driving some doctors and patients in red states to move or destroy frozen embryos.

The embryo migration is most striking in Alabama, where the State Supreme Court ruled in February that embryos were “unborn children.” Since then, at least four of Alabama’s seven fertility clinics have hired biotech companies to move the cells elsewhere. A fifth clinic is working with a doctor in New York to discard embryos because of concerns about the legality of doing so in Alabama.

Fertility patients outside of Alabama, too, are worried about how their precious embryos — specks of 70 to 200 cells barely visible to the human eye — might one day be affected by lawmakers who believe human life begins at conception. Since the Supreme Court’s 2022 decision to overturn Roe v. Wade, 14 states have passed total or near total abortion bans. And the Southern Baptists, the country’s largest Protestant denomination, voted in June to oppose I.V.F., calling for the protection of “frozen embryonic human beings.”

That month in Texas, Diana Zucknick spent $1,550 to send a tank of liquid nitrogen holding five of her embryos to New York for safekeeping. In South Dakota, Jennifer Zabel destroyed two embryos because she feared the state would take control of them. And in Mississippi, Dr. Preston Parry said more of his fertility patients were choosing to make fewer embryos at a time, prolonging the typical I.V.F. process in order to minimize leftover embryos.

While there is no official tally of the number of frozen embryos in the United States, experts estimate it’s in the millions. And many clinics are overwhelmed by a mounting inventory of cells that are sometimes years or even decades old.

“Everybody’s thinking about it,” said Karen Hammond, a founder of Innovative Fertility Specialists, a clinic in Birmingham, Ala., referring to embryo storage. “Definitely in Alabama.”

Alabama’s influential court case began when families sued a clinic in Mobile for a stunning security lapse: Someone wandered into an unlocked storage room, plucked out frosty tubes of embryos from a tank and dropped them on the floor. The judges agreed with the families’ contention that the state’s wrongful death statute could apply. “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God,” the chief justice wrote.

Several fertility clinics around the state halted operations, putting hundreds of families in limbo. Nationally, liberals and conservatives alike denounced the court’s ruling, and Alabama swiftly passed a law shielding clinics from liability. But many doctors and legal experts expect the state’s courts to overturn the law.

“It’s very vulnerable because the Constitution itself arguably supports treating these embryos as children,” said Susan Hamill, a University of Alabama law professor who studies the State Constitution.

Three Alabama clinics — the Center for Reproductive Medicine in Mobile (where the accident happened), Alabama Fertility in Birmingham and Huntsville Reproductive Medicine in Madison — are working with a company called ReproTech to move their embryos to other states, according to Brad Senstra, the company’s chief executive. ReproTech stores embryos from about 60,000 patients in warehouses in Connecticut, Florida, Minnesota, Nevada and Texas.

Alabama Fertility was already exploring shipping its samples to ReproTech’s facilities before the court decision, said Dr. Mamie McLean, one of the clinic’s five doctors. But the doctors liked Minnesota because it was a “safe option for patients to preserve their rights over their reproductive tissue,” she said. “There is a lot of uncertainty in our state about what might lie ahead.”

Ms. Hammond’s clinic in Birmingham, where staff members huddle to pray before procedures, is working with another company, TMRW, to ship about 200 embryos to New York. Since opening in 2021, the clinic had always planned to set up off-site storage to reduce costs for patients and legal liabilities for the clinic. But the court ruling pushed Ms. Hammond’s team to move faster, she said. They will ship the embryos in the next month.

The Alabama Center for Reproductive Medicine in Birmingham has also changed its storage procedures. In June, the clinic replaced its small metal tanks with a more secure TMRW robot, which uses digital codes to catalog samples and is opened with an iris scan. And the clinic is working with a doctor in New York who offers free shipping and storage for patients who want to store their embryos outside of Alabama or discard them.

The doctor, Zaher Merhi, said that he had received embryos from six patients in Alabama, and that a dozen more planned to move their cells soon.

“It’s really shaking the whole field,” Dr. Merhi said, referring to the Alabama ruling.

One of the Alabama patients who sent Dr. Merhi an embryo told The New York Times that she and her husband had been struggling to pay a $1,200 annual embryo storage fee when the court decision came down.

After the ruling, she recalled, “it was either keep the embryo here and pay this huge fee every year for the rest of your life, or use it to try to get pregnant — those were our only options.”

In April, she sent the embryo to Dr. Merhi to be discarded. She requested anonymity because she didn’t want people in her community to know she had destroyed the embryo.

Sending embryos elsewhere comes with some risks: Samples can get lost in transit or sit too long on hot tarmacs. But consolidated warehouses are usually cheaper, more secure and in areas with lower risk of natural disasters.

And for some clinics, out-of-state storage mitigates political uncertainty. In Louisiana, for example, where it has long been illegal to intentionally destroy embryos, most clinics store them out of state.

“Part of our job is to be able to see around the corner a little bit to try to prepare for as many contingencies as we can imagine,” said Dr. Kaylen Silverberg, the medical director of the Texas Fertility Center in Austin.

In 2015, his clinic began offering patients storage in a Las Vegas warehouse, which most patients have chosen because of its lower fees. He said a handful of patients had moved embryos to Las Vegas since the Alabama court ruling because of fears about what it might portend for Texas.

Dr. Silverberg, a Republican who argues that I.V.F. is “pro-life,” is skeptical that anti-I.V.F. sentiment will prevail. He cited polls showing that a robust majority of Americans support the technology. “This isn’t the hill anybody wants to die on,” he said.

In 2021, nearly 15,000 babies were born using I.V.F. and other assisted reproductive technology in states that now ban abortion, according to a Times analysis of the most recent federal data. That accounts for about 17 percent of all babies born that year via those procedures.

Still, the overturning of Roe means that states can outlaw the technology without warning. And in June, the Senate blocked legislation that would have created federal protections for I.V.F. patients.

“We’ve lost a very important safeguard,” said Sean Tipton of the American Society for Reproductive Medicine, which represents fertility doctors.

Some conservative groups agreed that the fall of Roe provided an opportunity to limit the destruction of embryos, arguing that morally, an embryo is a person. “There is nothing that distinguishes it from a child in the womb,” said John Seago, the president of Texas Right to Life. “Size and location is not the most important matter.”

Mr. Seago said he expected that it would take some years to build political support for I.V.F. restrictions. In Texas, the State Supreme Court recently declined hear a case arguing that frozen embryos were people. And Mr. Seago’s group has other priorities for the next legislative session, like stopping mail-order abortion pills.

“As soon as we see that opportunity, we’ll make sure it progresses,” Mr. Seago said, referring to embryo legislation.

Ms. Zucknick, who spent thousands at an Austin fertility clinic to create five embryos, is worried about exactly that possibility.

“We worked so hard to create these embryos, the last thing I want to is jeopardize our ability to make decisions about them,” she said.

After the Alabama ruling, her clinic sent an email to patients stressing that the decision “does not impact your care plan.” Even so, in June she and her husband paid to move their embryos to Dr. Merhi’s Manhattan clinic.

Several fertility doctors in states with abortion bans said that patients are increasingly asking to modify the standard process of fertility care — including speeding up treatment and making fewer embryos — because of fears about the political landscape.

Dr. Parry, one of the few fertility doctors in Mississippi, said that since Roe was overturned — and even more so since the Alabama decision — a growing minority of his patients had opted to make as few embryos as possible, even though it hurts their odds of conceiving.

“They’re more likely to not have a family, in order to not have embryos that may be regulated,” Dr. Parry said.

Some patients are destroying embryos rather than worrying about the changing political winds. Ms. Zabel underwent I.V.F. in South Dakota in 2018, after her breast cancer diagnosis. She knew chemotherapy would permanently damage her eggs, making I.V.F. the only option if she wanted her daughter to have biological siblings.

She and her husband created five embryos at a clinic in Sioux Falls, S.D., and she became pregnant with one of them in 2022. But just days after Roe was overturned, she miscarried. She recalled hemorrhaging in the emergency room while her doctors debated whether they could treat her under South Dakota’s newly activated abortion ban.

Ms. Zabel later transferred two more embryos, one of which resulted in a baby. This summer, she asked her clinic to discard the two that remained. Although she had considered having a third child, she didn’t want to be caught in another situation where state laws limited her options. “The politics of our country are telling me what I can and can’t do with my body,” Ms. Zabel said.