Military Couples Trying to Start Families Face Fear, Frustration Following Alabama Fertility Care Ruling

Some service members and their spouses are concerned they may soon be forced to choose between military service and having a family following the Alabama Supreme Court's ruling last week that frozen embryos have the same legal status as birthed children.

The Feb. 16 ruling opens the door to potentially severe legal ramifications for unsuccessful fertility treatments. Experts and reproductive-care activists say fertility clinics now face civil or criminal lawsuits if embryos are discarded -- a common practice if an embryo is determined to be unviable -- or if an embryo were to die in the transfer process from one facility to another.

Lindsay Boreham, whose husband Peter is an active-duty soldier at Fort Moore, located in Georgia just across the Alabama border, told Military.com she is scared and frustrated about the ruling and how being in the military complicates an already painful situation.

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The couple lost their son in a stillbirth in 2018, after which they turned to IVF treatments to have another child. Boreham said the pair have spent more than $45,000 trying to grow their family, with recent costs including shipping a number of collected embryos to Washington state, where fertility care is more affordable and protected.

One embryo, however, was not transferred after testing as a "mosaic," an embryo with a cell makeup that could make it problematic for implanting.

Boreham said she knows a military couple who recently went through the embryo retrieval process while stationed in Alabama. Having since completed a permanent change-of-station move to Germany, her friends could have potentially just lost access to those embryos in the blink of an eye.

"It just happened in a day, where now no shipper is willing to ship to or from Alabama, because they at this point risk being charged with manslaughter if anything happens with any of those embryos," she said. "It's very frustrating."

Boreham said she now worries that her mosaic embryo may never be transferable if the Alabama ruling sets a precedent for other states -- especially southern states such as Georgia, where Fort Moore is located, which are historically more conservative and restricted in their reproductive care.

"We've spent our entire life savings and my entire salary to make these embryos without a single dollar help from Tricare," Boreham said. "And then they're gonna rip them away when we wouldn't choose to be [stationed] there."

Under the new Alabama ruling, issued as a decision in a set of wrongful death cases brought by three couples who had frozen embryos accidentally destroyed at a fertility clinic, "unborn children are 'children' ... without exception based on developmental stage, physical location, or any other ancillary characteristics," Justice Jay Mitchell wrote in the court's decision.

The decision could potentially lead to wrongful death or manslaughter suits when embryos are destroyed.

There are only eight in vitro fertilization, or IVF, clinics across the state of Alabama, according to the Centers for Disease Control and Prevention. The procedure involves an egg that is retrieved and fertilized outside the body, and is typically used by families who have had difficulty conceiving.

At least three of the facilities in the state have since temporarily closed, or have ceased performing hormonal treatments and conducting embryo transfers and transplants. In a military context, that means an out-of-state PCS move to or from Alabama could result in military families leaving embryos behind or delaying the often yearslong process of having a child through IVF or surrogacy.

There are around 13,000 active-duty service members, close to 25,000 Guard and Reserve members, and more than 18,000 military spouses across the state of Alabama, according to the Defense Department. In an email to Military.com, a department official confirmed that the DoD has no current plans to change any care options for service members or their beneficiaries.

"The department will continue to follow existing policies to ensure continued access to necessary medical care for our service members, families and other beneficiaries," the official said.

But Tricare does not cover reproductive procedures such as artificial insemination or IVF treatments for service members without a service-related fertility condition or for military spouses. Furthermore, single service members and same-sex couples are only just being included in the limited fertility care options covered, according to court documents revealed last month in an ongoing lawsuit against the DoD's current policy.

Rulings such as the Alabama decision will only put a deeper burden on the DoD and service members, said Janessa Goldbeck, chief executive officer for the nonprofit advocacy group Vet Voice Foundation.

Following the U.S. Supreme Court's decision to overturn the right to abortion, the Defense Department created policies that still provide abortions to service members, but only in cases of rape, incest or if the pregnancy is a threat to the mother's health, including mental health. In all other cases, the service member must pay, although the department will cover the travel costs to a state where abortion is legal if troops are stationed elsewhere.

A similar policy ensuring access to fertility care will only add to the burden on both the DoD and troops, Goldbeck said, adding it's the least that can be done for troops.

"It is a betrayal of what we say we're gonna do when someone raises their hand and swears to defend our Constitution, and when we make a pledge or a promise that we're going to take care of them," she said.

For former Army soldier Olivia Green and her husband Ben, who remains on active duty in the Army at Fort Carson, Colorado, Alabama's ruling and the uncertainty of access under military health care are why the couple have already discussed leaving the service behind.

Green has Fabry's disease, a genetic condition -- which she is 50% likely to pass down to any children -- that impacts the body's ability to break down fats. She learned she had the disease after seeking fertility care following a miscarriage during her time in the Army.

If passed along to any male children in particular, it would mean a life expectancy of about 50 years, according to the Cleveland Clinic's disease database. 

In order to ensure none of their future children have the disorder, expensive genetic testing and IVF are a necessity. None of it is covered by Tricare and, with the Alabama ruling, they feel their egg retrieval scheduled in about two weeks is threatened.

Their option of bringing any eggs they save with them to their next duty station could disappear, Green said. It will effectively be a choice between passing on the disease or risking not having a family at all.

"We cannot have children with Fabry's disease; that's just not an option for us," Green said. "So, we've talked about [Ben leaving the Army], just because we want to have multiple children. I just can't believe that this is a reality that we have to even think about."

A Government Accountability Office report published in 2020 found that women separate from the armed forces at a rate 28% higher than men and tend to do so over six main concerns -- including family planning. As women make up more than half of the recruiting pool, the report said, the services need to address gaps in care impacting their contract and enlistment-related decisions.

The services have had a historically tough time recruiting in the last few years, with only the Marine Corps and the Space Force -- the smallest forces with the lightest recruiting burdens -- making their quotas in fiscal 2023. These low numbers come despite the Air Force relaxing drug policies and the Navy offering record-high bonuses and removing certain education requirements.

Some, such as Goldbeck, suggest a solution might be ensuring reproductive care options for service members as those options are being threatened for civilians nationwide.

"This could severely impact people's ability to start families, which would definitely impact people's decisions about whether or not to join or stay in the military," Goldbeck said. "Our recruiting forces are working incredibly hard and in an incredibly challenging environment to hit their goals and ensure that we are an already capable force, and this ruling just is another blow at those efforts."

The foundation's legal team is considering potential next steps to challenge such rulings, she added.

As for veterans, those seeking fertility care in Alabama can still turn to the Department of Veterans Affairs, Terrence Hayes, press secretary for the VA, told Military.com in an email.

"The VA will continue to make sure that eligible veterans have access to in-vitro fertilization and other reproductive health care, regardless of where they live," Hayes said.

That promise may also be strengthened by Sen. Tammy Duckworth's Feb. 27 announcement that she would be introducing a bill addressing a federal right to fertility care.

"I was stationed in Alabama for a bit when I was in the Army. In fact, it is the home of Fort Novosel, the home of Army aviation," the Illinois Democrat and former Army helicopter pilot said in a televised statement. "I didn't know it at the time, but my infertility would become one of the most heartbreaking struggles of my life, my miscarriage more painful than any wound I ever suffered on the battlefield."

It was only with the help of IVF that Duckworth was able to have children after her time in Iraq, she said.

The bill, called the Access to Family Building Act, would protect parents and doctors in their efforts to start a family, regardless of what state they live in. For troops who are waiting and concerned about having children, it may not come soon enough.

Related: Single Troops and Same-Sex Couples Will Have Access to Fertility Treatment Under New Pentagon Policy