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Note: As the aftermath of the Dobbs decision reversing Roe v. Wade (SCOTUS 6/22) continues to reverberate across the country, Legally Speaking™ focuses, as it has since its beginnings, more closely on presenting and reflecting on the impact and the potential implications of legal developments on the assisted reproductive technologies.

To follow fast-breaking legal developments on abortion access and restrictions, excellent on-line resources, updated almost daily, are available that track developing legislation and litigation.

Alabama Supreme Court Considers Wrongful Death Claim in Frozen Embryo Destruction Case


On September 19th 2023, lawyers argued before the Alabama Supreme Court whether Alabama’s wrongful death statute applies to IVF frozen embryos.  The case was brought by three patient families against the Center for Reproductive Medicine after another patient reportedly gained unauthorized access to the freezer and removed and dropped five embryos, rendering them unusable. The appellants, according to pleadings filed with the Alabama Supreme Court, include former patients Felicia Burdick-Aysenne and Scott Aysenne, “in their individual capacities and as parents and next friend of Baby Aysenne, deceased embryo/minor”. A lower court judge had dismissed the case on the grounds that an IVF embryo did not constitute a person under Alabama law (a conclusion similarly reached by other state courts in a small number of tank failure cases pre-Dobbs).  Attorneys for the families argue that Alabama law recognizes fertilization as the moment when life begins, so that the wrongful death statute should apply, and that the only distinction between implanted and frozen embryos is location. Attorneys for the clinic argue frozen embryos are not covered under other provisions of Alabama law, including its homicide law, and should not be subject to the wrongful death law. 

An amicus brief (“friend of court” brief filed by a non-party) filed by Alabama’s Medical Association also argued that exposure to wrongful death liability would not only drive up the costs of IVF but, by increasing legal risk to providers, encourage clinics and specialists to move out of state.

The arguments put forward by the attorneys for the families echo earlier, unsuccessful anti-abortion efforts to personify IVF embryos, such as in the Colorado case of In Re Marriage of Rooks[LS Dec. 2018.] In that case, after losing, the ex-wife petitioned the US Supreme Court to hear the case and decide the status of IVF embryos on a national basis. The Court “denied cert” (declined to hear) in 2018.  In the present case, the attorneys similarly argue:

“This appeal presents this Court with the opportunity to lead the Nation ... in proclaiming that all human life is precious from the moment of conception and that remedies do indeed exist for the wrongful deaths of human embryonic children.”



Unlike in 2018, the currently composed US Supreme Court has demonstrated a marked willingness to restrict and diminish reproductive rights, raising concerns that should this case be appealed by whichever side loses before the Alabama Supreme Court, another test-case attempting to equate IVF embryos with in utero embryos, or born children, will be headed to the Supreme Court with a less certain outcome.

Burdick-Aysenne and Aysenne v. Ctr. for Reproductive Medicine and Mobile Infirmary Association, No. SC-2022-0579 (case pending)
https://www.al.com/news/2023/09/case-before-alabama-supreme-court-could-shut-down-fertility-clinics-medical-group-warns.html 

State and local jurisdictions pursue anti-abortion travel restrictions with potential implications for interstate surrogacy arrangements


Despite assurances by Supreme Court Justice Kavanaugh in the Dobbs decision that the constitutional right to travel would not be affected by the Court’s decision or by various anti-abortion laws states might chose to enact within its own borders, ant-abortion efforts do not seem to have stopped at state borders.  Recent examples include Idaho, which has passed anti-abortion statutes that implicate the right to travel, including an almost total ban on abortion as well as an anti-abortion “trafficking” statute that would restrict minor residents from traveling out of state for abortion services without parental consent and penalize those who aid them in doing so. The Idaho law directed solely at pregnant minors should obviously have no impact on ART arrangements. On a local level, border-town and so-called “Sanctuary” cities have passed or are considering similar restrictions for adults, a large number of which have been passed in Texas. Both raise constitutional concerns and, as applied to adult residents of these states, carry potential implications for interstate surrogacy arrangements.

Idaho’s most recent law, HB 242, directed at minors (enacted in April 2023) makes it illegal for anyone to either obtain abortion pills for a minor or to help a minor leave the state for an abortion without their parents’ knowledge and consent. Penalties include 2-5 years in prison, and potential liability to the child’s parent or guardian. In an effort to meet constitutional objections, the law was crafted only to criminalize the in-state portion of the travel, although the only purpose of in-state travel is to travel out-of-state to obtain a legal abortion in another jurisdiction. Planned Parenthood has called the law “despicable,” and warned it will isolate and put young people in danger, including those in abusive situations.

Idaho’s already strict abortion ban is also being challenged by the ACLU on behalf of a regional Planned Parenthood affiliate and two Idaho physicians after Idaho’s attorney general issued a legal opinion interpreting it’s strict abortion ban to include a prohibition against Idaho physicians referring patients to out of state providers or issuing prescriptions for anti-abortion medications to be picked up out-of-state.  The ACLU argues the law as interpreted by the state’s attorney general violates constitutionally protected First Amendment rights to free speech and the Commerce Clause.

In Texas, local ordinances that would make it illegal to drive through a city of town for the purpose of obtaining an out-of-state abortion have reportedly passed in a number of Texas cities and counties including two in the past several months and at least one pending as of publication. According to the proponent of these restrictions, Right to Life East Texas Director Mark Dickson, seventy-one “Sanctuary Cities for the Unborn” have passed in the US with fifty-two of them in Texas. According to Dickson, “This really is building a wall to stop abortion trafficking” because “the unborn child is always taken against their will.”

Restrictions on interstate travel for pregnant adults for the purposes of obtaining legally available reproductive care in another jurisdiction, including terminations or selective reductions, could have significant impacts on interstate surrogacy. Most interstate surrogacy contracts include a choice-of-law provision and participants will likely be advised to and choose the more liberal law where available. Such contractual arrangements, however, may be ineffective against a restrictive state’s laws and ordinances that seek to impose their anti-abortion “trafficking” law against a resident gestational surrogate, or those who would aid or advise her, under the argument that the state is seeking solely to protect the “unborn child” who was neither a party to any contract or able to consent to the travel.  Professionals who assist in third-party ART arrangements involving residents of states with strict anti-abortion laws and ordinances should be mindful of these potential vulnerabilities for their clients and themselves.

https://apnews.com/article/idaho-abortion-minors-criminalization-b8fb4b6feb9b520d63f75432a1219588 

Legally Speaking

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An indispensable news digest for reproductive scientists, clinicians and allied health professionals. The Latest News posts are available to ASRM members in good standing only.

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ASRM Press Releases and Bulletins are published by ASRM's Office of Public Affairs to inform the press and Society members of important recent developments.

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Legally Speaking Column

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Fertility and Sterility On Air - Live from PCRS 2024

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ASRM provides testimony to Senate Judiciary Committee on threats facing IVF

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What's New from the Fertility and Sterility Family of Journals

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What's New from the Fertility and Sterility Family of Journals

Here’s a peek at this month’s issues from our family of journals! As an ASRM Member, you can access all of our journals. Not yet a member? Click here(no link) to learn more. Find More
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Shipping of frozen embryos

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Clinical management of mosaic results from preimplantation genetic testing for aneuploidy of blastocysts: a committee opinion (2023)

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Frozen Embryo Destruction and Potential Travel Restrictions for Surrogacy Arrangements

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ICSI and Embryo Biopsy

How to bill for ICSI or embryo biopsies that occur in different days?  View the Answer
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Embryo Biopsy

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Embryo Biopsy Embryologist Travel Costs

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Embryo Biopsy PGS Testing

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Embryo Culture Denied As Experimental

We have received denials from insurance payers when billing CPT code 89251.  View the Answer
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Embryo Culture Less Than And More Than Four Days

When coding 89250 culture of oocytes/embryo <4 days, should that code be submitted to the insurance company for each of the days? View the Answer
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Embryo Freezing/Thawing

Our question refers to the CPT code 89258 “Cryopreservation; Embryo(s)” and 89352 “Thawing of Cryopreserved; Embryo”.  View the Answer
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Embryo Storage Fees For Multiple Cycles

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Embryo Thawing/Warming

Is it allowable to bill 89250 for the culture of embryos after thaw for a frozen embryo transfer (FET) cycle? View the Answer
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Assisted Hatching Billed With Embryo Biopsy

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Assisted Zona Hatching

Can assisted hatching and embryo biopsy for PGT-A; PGT-M or PGT-SR be billed during the same cycle? View the Answer
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Billing For Cryopreservation Of Embryos Under The Male Partner

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Colorado court balances religious and secular beliefs in frozen embryo divorce dispute

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Journal Club Global: Is PGT-P cutting edge or should we cut it out?

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Ethics in embryo research: a position statement by the ASRM Ethics in Embryo Research Task Force and the ASRM Ethics Committee (2020)

Scientific research using human embryos advances human health and offspring well-being and provides vital insights into the mechanisms for reproduction and disease. Research involving human embryos is ethically acceptable if it is likely to provide significant new knowledge that may benefit human health, well-being of the offspring, or reproduction. View the Committee Opinion
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Guidance for Providers Caring for Women and Men Of Reproductive Age with Possible Zika Virus Exposure (Updated 2019)

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Blastocyst culture and transfer in clinically assisted reproduction: a committee opinion (2018)

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Posthumous retrieval and use of gametes or embryos: an Ethics Committee opinion (2018)

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Disclosure of medical errors involving gametes and embryos: an Ethics Committee opinion (2016)

Medical providers have an ethical duty to disclose clinically significant errors involving gametes and embryos as soon as they are discovered. Clinics also should have written policies in place for reducing and disclosing errors. View the Committee Document
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Recommended practices for the management of embryology, andrology, and endocrinology laboratories: a committee opinion (2014)

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Informed consent and the use of gametes and embryos for research: a committee opinion (2014)

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ASRM EDGE Tool

Get the EDGE on your fellow Embryologists! As the grading of embryos varies within IVF laboratories and between laboratories, EDGE allows you to compare yourself against embryologists in the US and around the world. Learn more about the EDGE Tool

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Frozen Embryo Destruction and Potential Travel Restrictions for Surrogacy Arrangements

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