MONTGOMERY, Ala. — Alabama lawmakers racing to restart in vitro fertilization services in the state are set to weigh final approval for legislation shielding providers from the fallout of a court ruling that equated frozen embryos to children.
The state Senate and House will consider identical bills Wednesday that would protect providers from lawsuits and criminal prosecution for the “damage or death of an embryo” during IVF services. The state's three major IVF providers paused services after the Alabama Supreme Court's ruling last month because of the sweeping liability concerns it raised.
Lawmakers have fast-tracked the immunity legislation as a proposed solution to get clinics open while they weigh whether additional action is needed. If the legislation passes, it will go to Gov. Kay Ivey to be signed into law, possibly the same evening.
“The problem we are trying to solve right now is to get those families back on track to be moving forward as they try to have children,” said Rep. Terri Collins, sponsor of one of the bills.
The court ruled that three couples who had frozen embryos destroyed when a hospital patient got into the storage unit at a fertility clinic and dropped stored embryos could pursue wrongful death lawsuits for their “extrauterine children.” The ruling, treating an embryo the same as a child or gestating fetus under the wrongful death statute, raised concerns about civil liabilities for clinics. A fourth couple filed a similar wrongful death lawsuit last week.
The court decision drew immediate backlash as groups across the country raised concerns about a ruling recognizing embryos as children. Patients in Alabama shared stories of upcoming embryo transfers being abruptly canceled and their paths to parenthood put in doubt.
Beth and Joshua Davis-Dillard, who transferred frozen embryos to Alabama when they moved from New York, watched as the Senate committee voted Tuesday.
“We’ve been working up to getting ready to trying again. We still have embryos from our prior cycle, which we did in New York. We transferred them here. We can’t use them. We’re on hold,” Beth Davis-Dillard said. “I’m 44, so time is limited. We don’t have unlimited time to wait. We really want to give it a try and see if we can have another baby.”
Beth David-Dillard said that before they transferred the embryos to Alabama, the couple briefly discussed whether the state's strict abortion ban or political climate could be a problem but presumed it would ultimately be fine.
“It just feels like our rights are being restricted,” she said.
The legislative proposals state that "no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” The immunity would be retroactive but would exclude pending litigation.
Civil lawsuits could be pursued against manufacturers of IVF-related goods, such as the nutrient-rich solutions used to grow embryos, but damages would be capped and criminal prosecution would be forbidden. Doctors have expressed concern that without some protections for manufacturers they will not be able to get the products they need to provide IVF.
Dr. Michael C. Allemand with Alabama Fertility said the legislative proposal would allow the clinic to resume IVF services by returning “us to a normal state of affairs in terms of what the liability issues are.”
He said the past weeks have been difficult on patients and staff as procedures have been postponed.
“There's been some truly heart-wrenching conversations that have taken place,” Allemand said.
The American Society for Reproductive Medicine, a group representing IVF providers across the country, said the legislation does not go far enough. Sean Tipton, a spokesperson for the organization, said Monday that the legislation does not correct the fundamental problem, which he said is the court ruling “conflating fertilized eggs with children.”
House Democrats proposed legislation that would put in state law or the state Constitution that a human embryo outside a uterus cannot be considered an unborn child or human being under state law. Democrats argued that was the most direct way to deal with the issue. Republicans have not brought the proposals up for a vote.
State Republicans are reckoning with an IVF crisis they partly helped create with anti-abortion language added to the Alabama Constitution in 2018. The amendment, which was approved by 59% of voters, says it is state policy to recognize the “rights of unborn children."
The phrase became the basis of the court's ruling. At the time, supporters said it would allow the state to ban abortion if Roe v. Wade were overturned, but opponents argued it could establish “personhood” for fertilized eggs.
Collins said she doesn't think lawmakers got it wrong with the amendment but that the wording was broad enough that it had ramifications they didn't anticipate.
Collins, who sponsored the state's stringent abortion ban, said she thought any law exempting embryos from legal protections might be found unconstitutional under the 2018 amendment. Changing the constitution, she said, is a longer conversation.
“It's very divisive," she said. “Everybody has very strong opinions on when life begins.”
Republicans are also trying to navigate tricky political waters — torn between widespread popularity and support for IVF — and conflicts within their own party. Some Republicans have unsuccessfully sought to add Louisiana-style language to ban clinics from destroying unused or unwanted embryos.