Are fertility regulations encroaching on bodily autonomy?
Last Friday, the Alabama Supreme Court ruled that frozen embryos created using IVF are considered “extrauterine” children under state law, paving the way for fertility clinics, doctors, and others to be prosecuted criminally under the state’s Wrongful Death Act or face punitive damages if the embryos are destroyed.
The decision is already having ripple effects. In Alabama, two major IVF providers — the University of Alabama at Birmingham and Alabama Fertility — have paused treatments. (UAB will continue egg retrievals, but will halt egg fertilization and embryo development.) And in Florida, the Senate is considering passing a bill that would permit parents to sue for damages for the wrongful death of an unborn child through wrongful acts or negligence — though one of the bill’s authors said she may revamp the language so that it excludes IVF or abortion claims.
While IVF providers in Alabama grapple with how to move forward, reproductive rights advocates are once again sounding the alarm. They warn that deeming embryos children is the next step in further eroding bodily autonomy, and it could eventually jeopardize other manners of family planning, including contraception. KCM spoke with Jenice Fountain, the executive director of Yellowhammer Fund — a reproductive justice organization that serves Alabama, Mississippi, and the Deep South — about how the nonprofit is adjusting to the continuing attacks on reproductive rights and the next steps in the fight.
KCM: Before we talk about Alabama’s ruling, a lot has happened since Roe v. Wade was overturned. Could you talk about how Yellowhammer Fund’s work has changed since that ruling came down?
JF: Before the Dobbs decision, we went from working with about 150 clients a week, paying for abortion-adjacent care — paying for the procedure, paying for travel, all those things — to having to abruptly stop completely. At first, we were thinking that we’d be able to just fund out-of-state abortions. But our Attorney General added that threat to prosecute on a criminal conspiracy level, so we are not even able to fund out-of-state abortions because we run the risk of 99 years of incarceration, since we would be charged in the same manner as the person providing an abortion. We’re suing the Attorney General to get back to funding, so we haven’t given up yet. But at the moment, we are not funding abortion access in any way.
Our biggest pivot was that we had to lean into self-advocacy — making sure that communities still could get what they needed without those threats of criminalization. For instance, our fellowship taught folks how to self-manage abortion, and it taught folks how to teach their communities to self-manage. It taught folks how to use emergency contraceptives and safer sex supplies, gave them information about where to go, the miscarriage and abuse hotline, and other full-spectrum reproductive support lines that we felt safe giving out. They offer a multitude of things, but also covere the base of abortion.
Now we have a legal fund as well. So, for instance, if you try to go across state lines and get caught, we provide legal representation for those folks — or people that have their pregnancy outcome criminalized in any other way, like if you tried to self-manage and you got caught.
Speaking of self-managing abortions, the legality of mifepristone is being considered by the Supreme Court. How are you preparing for that decision?
We saw it coming because it affects this whole entire playbook of completely dismantling any of our bodily autonomy or abortion access. When we did the self-managing courses, we taught people how to manage without mifepristone.
We have to structure our movement and work to be long-term and fight back. What conservatives did well was build out a plan — that was albeit horrible, terrible, and destructive — but they built it. It hasn’t stopped yet. We have to build out something that can function now and then create something else better than Roe. I think Roe was necessary. It served a purpose. And if we’re going to build out something different, maybe it can better.
Better how?
I think Roe should have been codified. It should’ve never been this thing that was constantly up for grabs, should someone drop off the Supreme Court. When we have conversations about reproductive justice and abortion bans, they need to be more full-spectrum. We can’t only talk about abortion bans, because of the implications of what happens. And now we’re looking at the fallout. We’re in Alabama with no access to IVF. UAB has already paused their services. This is the danger of what you want to be considered personhood. It’s never just been about abortion access. We’ve been screaming: It’s been about controlling who can birth, how, who can parent, and when. And now people are surprised that this is what they’re trying to do. It’s never just been about abortion, and it’s never only going to be about abortion. It’s going to be a dangerous game to play with people’s lives.
The Alabama Supreme Court ruling is about IVF, so what, if anything, does this have to do with abortion?
The state is obsessed with the idea of controlling who can birth and when and how. We were already in a state that tried to limit whether queer people can be parents for adoption. So when this comes up, it’s not really new. I don’t even know if I would argue that it’s not about abortion — I would argue that it’s always been about bodily autonomy. It’s just related. It’s the fallout of an ultimate agenda that’s always been about controlling people’s ability to parent or not.
What types of implications beyond IVF or beyond Alabama do you see from this ruling?
I’m saddened by how many people don’t see this as a crisis point. And I’m saddened by how this is the line for some folks. But abortion bans were fine; midwifery care regulations are fine; you can’t have birthing centers, that’s fine. I’m really saddened at how things haven’t hit specific folks’ doorsteps before they’re concerned about the collective. The implication is just that it’s not gonna stop. Reproductive autonomy has always had to include infertility or fertility treatments. No one wants to risk a murder charge for losing egg.
What is the alternative? Are people just supposed to pay to keep their embryos frozen indefinitely? Is the goal to eliminate IVF?
I think one of the things about it is, especially looking at abortion bans, you can still get an abortion if you can go out of state. If you have enough money and enough resources, you can get it. I think they know that certain people are going to have enough money or resources to get it, and they know who’s not going to be able to. I really think it boils down into being able to control who conceives and who doesn’t.
And for people who are outraged by this ruling, is there anything that they can do to take action and fight back?
I think knowing is half of the battle — disseminating information and sharing it with your community — because not everyone has time to read a bill or know what’s going on. And then there’s work being done by nonprofit organizations around fertility that people can tap into, which include fertility and infertility as a spectrum of reproductive justice work.
