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ASRM Condemns Profoundly Misguided and Dangerous Court Decision in Alabama

Statement attributable to Paula Amato, MD President


February 18, 2024
For Immediate Release

Washington, DC – "In LePage v Mobile Infirmary Clinic, the Alabama Supreme Court made a decision that flies in the face of medical reality and the needs of the citizens of Alabama.

In its medically and scientifically unfounded decision, the court held that a fertilized frozen egg in a fertility clinic freezer should be treated as the legal equivalent of an existent child or a fetus gestating in a womb. The eight members of the court who approved this decision may view these things as the same, but science and everyday common sense tell us they are not.

Cryopreservation, or freezing of reproductive tissues, including fertilized eggs or embryos, is essential to modern fertility care and helps patients achieve the birth of a single, healthy child. In natural fertility, several eggs are often fertilized before one develops and implants in the uterus. Similarly in IVF, to get the best outcome, several eggs must be fertilized to allow for one with normal growth and development to be chosen and transferred into the uterus. Any remaining normally developing embryos can be, at the patient’s request and consent, frozen for later use. The best-developing embryo will be transferred into a patient for an attempt at a pregnancy while the rest are frozen for use, in case the first one does not develop into a live birth, or the patient later desires another child later.  By insisting that these very different biological entities are legally equivalent, the best state-of-the-art fertility care will be made unavailable to the people of Alabama. No healthcare provider will be willing to provide treatments if those treatments may lead to civil or criminal charges.

If the policy outcomes mandated under this decision stand, the consequences will be profound. Modern fertility care will be unavailable to the people of Alabama, needlessly blocking them from building the families they want. Young physicians will choose not to come to the state for training or to begin their practice. Existing clinics will be forced to choose between providing sub-optimal patient care or shutting their doors. 

The choice to build a family is a fundamental right for all Americans, regardless of where they live. We cannot, therefore, allow this dangerous precedent of judicial overreach with national implications to go unchecked.

We call on the people of Alabama to demand that their elected officials ensure that Alabama’s citizens are not victims of political and ideological whims. To our members in the state: We will not rest until your ability to provide patients with the best care is restored.”

For almost a century, the American Society for Reproductive Medicine (ASRM) has been the global leader in multidisciplinary reproductive medicine research, ethical practice, and education. ASRM impacts reproductive care and science worldwide by creating funding opportunities for advancing reproduction research and discovery, by providing evidence-based education and public health information, and by advocating for reproductive health care professionals and the patients they serve. With members in more than 100 countries, the Society is headquartered in Washington, DC, with additional operations in Birmingham, AL. www.asrm.org 

For media inquiries regarding this press release contact:

Sean Tipton
ASRM Chief Advocacy and Policy Officer
E: stipton@asrm.org

Anna Hovey
Advocacy Engagement Specialist
E: ahovey@asrm.org 

J. Benjamin Younger Office of Public Affairs 
726 7th St. SE
Washington, DC 20003
Tel: (202) 863-2494

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In vitro maturation (IVM) has the potential to make IVF cheaper, safer, and more widely accessible to patients with infertility. View the Video
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Comparison of pregnancy rates for poor responders using IVF with mild ovarian stimulation versus conventional IVF: a guideline (2018)

Mild-stimulation protocols with in vitro fertilization (IVF) generally aim to use less medication than conventional IVF. View the Guideline
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IVF cycle management and facility fees, an overview

How should IVF Cycle Management be coded?  View the Answer
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Limited ultrasound performed by RN

Would it be appropriate to bill a 99211 when an RN is doing a limited ultrasound and documenting findings during an IUI or IVF treatment cycle? View the Answer
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CPT 89253 and 89254 for Assisted hatching

Can I bill CPT codes 89253 and 89254 together? If yes, do I need a modifier on any of the codes? View the Answer
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Journal Club Global - What is the optimal number of oocytes to reach a live-birth following IVF?

The optimal number of oocytes necessary to expect a live birth following in vitro fertilization remains unclear. View the Video
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Patient Education

What is the correct way to bill for the patient education sessions performed by registered nurses to individual patients prior to their IVF cycle? View the Answer
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Pregnancy Ultrasound

Our practice does routine ultrasounds (sac check- 76817) at the end of an IVF cycle and bill with a diagnosis code O09.081, pregnancy resulting from ART.  View the Answer
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IV Fluids During Egg Retrieval

Is it appropriate to bill the insurance company for CPT 96360, Under Hydration Infusion when being used in conjunction with IVF retrieval? View the Answer
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IUI or IVF

Should other ovarian dysfunction (diagnosis code E28.8) or unspecified ovarian dysfunction (diagnosis code E28.9) can be used for an IUI or an IVF cycle View the Answer
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IVF Case Rates

What ICD-10 codes apply to case rates? View the Answer
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IVF Consent Counseling

When a patient is scheduled to undergo IVF and the provider schedules the patient for a 30-minute consultation is this visit billable? View the Answer
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Ovulation Induction Monitoring for IUI

We would like to clarify the correct ICD 10 diagnosis code for monitoring of an IUI cycle.  View the Answer
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In Vitro Maturation

Have CPT codes been established for maturation in vitro? View the Answer
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IVF Billing Forms

I am seeking information on IVF insurance billing guidelines.  View the Answer
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IVF Billing Globally

Am I correct in assuming that it is duplicate billing for both the ambulatory center and embryology laboratory to bill globally? View the Answer
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IVF Billing of Professional Charges

Are we allowed to bill professional charges under the physician for the embryologist who performs the IVF laboratory services? View the Answer
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Lab Case Rates

What ICD-10 codes apply to case rates? View the Answer
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Oocyte Denudation

Is there is a separate code for denudation of oocytes?  View the Answer
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Endometrial Biopsy/Scratch

What CPT code should be used for a “scratch test”?  View the Answer
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Endometriosis and Infertility

For treatment like IVF would we bill with N97.x first or an endometriosis diagnosis? View the Answer
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Follicle Monitoring For Diminished Ovarian Reserve

If a patient has decreased ovarian reserve (ICD-10 E28.8) and patient is undergoing follicle tracking to undergo either an IUI cycle or IVF cycle... View the Answer
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Global Billing Vs Billing Under Provider

For an IVF cycle (that is not being billed global to an insurance plan) is it appropriate to bill the charges under one “global” provider? View the Answer
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Diagnosis of Infertility for IVF Procedure

How important is it to have accurate documentation of the type of infertility diagnosis for IVF procedures?  View the Answer
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Egg Culture and Fertilization

We are billing for the technical component of 89250 and would like to also bill a professional component of the 89250. View the Answer
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Egg Culture and Fertilization: Same Gender

A same-sex male couple requested half their donor eggs be fertilized with sperm from male #1 and the other half fertilized from male #2. View the Answer
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Donor Embryos

Could you give guidance for the correct ICD-10 code(s) to use when a patient is doing an Anonymous Donor Embryo Transfer cycle? View the Answer
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Journal Club Global: Natural versus Programmed FET Cycles

A significant portion of IVF cycles now utilize frozen embryo transfer.
View the Video
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Role of assisted hatching in in vitro fertilization: a guideline (2022)

There is moderate evidence that assisted hatching does not significantly improve live birth rates in fresh assisted reproductive technology cycles View the Committee Opinion
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Journal Club Global - Best Practices of High Performing ART Clinics

This Fertility and Sterility Journal Club Global discusses February’s seminal article, “Common practices among consistently high-performing in vitro fertilization programs in the United States: a 10 year update.” View the Video
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Guidance on the limits to the number of embryos to transfer: a committee opinion (2021)

ASRM's guidelines for the limits on the number of embryos to be transferred during IVF cycles have been further refined ... View the Committee Opinion
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Journal Club Global Live from India - Adjuvants in IVF and IVF Add-Ons for the Endometrium

Many adjuvants have been utilized by IVF centers to improve their success rates. View the Video
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Evidence-based outcomes after oocyte cryopreservation for donor oocyte in vitro fertilization and planned oocyte cryopreservation: a guideline (2021)

A review of success rates, factors that may impact success rates, and  outcomes. View the Committee Opinion
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Development of an emergency plan for in vitro fertilization programs: a committee opinion (2021)

All IVF programs and clinics should have a plan to protect fresh and cryopreserved human specimens (embryos, oocytes, sperm). View the Committee Opinion
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In vitro maturation: a committee opinion (2021)

The results of in vitro maturation (IVM) investigations suggest the potential for wider clinical application.  View the Committee Opinion
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Fertility treatment when the prognosis is very poor or futile: an Ethics Committee opinion (2019)

The Ethics Committee recommends that in vitro fertilization (IVF) centers develop patient-centered policies regarding requests for futile treatment.  View the Committee Opinion
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Blastocyst culture and transfer in clinically assisted reproduction: a committee opinion (2018)

The purposes of this document is to review the literature regarding the clinical application of blastocyst transfer. View the Committee Opinion
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The role of immunotherapy in in vitro fertilization: a guideline (2018)

Adjuvant immunotherapy treatments in in vitro fertilization (IVF) aim to improve the outcome of assisted reproductive technology (ART) in both the general ART population as well as subgroups such as patients with recurrent miscarriage or implantation failure. View the Committee Opinion
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Performing the embryo transfer: a guideline (2017)

A systematic review of the literature was conducted which examined each of the major steps of embryo transfer. Recommendations made for improving pregnancy rates are based on interventions demonstrated to be either beneficial or not beneficial. (Fertil Steril® 2017;107:882–96. ©2017 by American Society for Reproductive Medicine.) View the Committee Guideline
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Best practices of ASRM and ESHRE: a journey through reproductive medicine (2012)

ASRM and ESHRE are the two largest societies in the world whose members comprise the major experts and professionals working in reproductive medicine. View the Committee Joint Guideline
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In Vitro Maturation Special Interest Group (IVMSIG)

IVMSIG strives to define the best strategies to optimize IVM outcomes. Learn more about IVMSIG
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What support for IVF looks like

Bipartisan support for IVF, that is responsible for the birth of over 2% of all babies born in the USA each year, will ensure that families continue to grow. View the advocacy resource
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It takes more than one

Why IVF patients often need multiple embryos to have a baby View the advocacy resource
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Oversight of IVF in the US

In the US, medical care is regulated by a complex and comprehensive network of federal and state regulations and professional oversight. View the advocacy resource
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Advocacy Resources

ASRM has prepared resources to help explain and advocate for reproductive rights and the continuation of in vitro fertilization and other fertility treatments. View the advocacy resources

Topic Resources

View more on reproductive rights
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Changes Ahead: Abortion Policy Proposals Affecting Reproductive Medicine

In January 2023, lawmakers reconvened for the first legislative sessions since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org. View the Report
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States' Abortion Laws Potential Implications for Reproductive Medicine

This report is the second in a series from the ASRM Center for Policy and Leadership (CPL), a non-partisan think tank. View the Report
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The Potential Impact of States’ Abortion Trigger Laws on Reproductive Medicine

In thirteen states, so-called “trigger” laws have and are set to take effect which ban or severely restrict abortion care. View the Report
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ASRM Advocacy

The U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization overturned the nearly 50-year precedent set by Roe v. Wade. See what ASRM is advocating
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Take Action Now!

Like you, ASRM is extremely concerned over the decision from the Supreme Court to overturn Roe v. Wade and its impact. Take Action