Alabama lawmakers advance legislation to protect IVF providers after frozen embryo ruling
MONTGOMERY, Ala. — Alabama lawmakers, facing public pressure to restart in vitro fertilization services in the state, have pushed legislation to protect providers from the fallout of a court ruling that equated frozen embryos with children.
Committees in the Senate and House of Representatives on Tuesday approved identical bills that would protect providers from lawsuits and criminal charges for “damage or death of an embryo” during IVF services. The state’s three major IVF providers halted services following the Alabama Supreme Court’s ruling last month because of the sweeping liability concerns they raised.
Lawmakers aim to give final approval Wednesday and send the legislation to Governor Kay Ivey to be signed into law. They have fast-tracked immunity legislation as a proposed solution to getting clinics open again while they weigh whether additional action is needed.
“The problem we’re trying to solve now is getting these families back on track so they can move forward in their efforts to have children,” said Rep. Terri Collins, sponsor of one of the bills.
The court ruled that three couples whose frozen embryos were destroyed in an accident at a storage facility could file wrongful death lawsuits for their “ectopic children.” The ruling, which treated an embryo the same as a child or pregnant fetus under the wrongful death statute, raised concerns about clinics’ civil liability.
The court’s ruling 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 that were abruptly canceled and their path to parenthood thrown into doubt.
Beth and Joshua Davis-Dillard watched as the Senate committee voted. The couple had frozen embryos transferred to Alabama after moving from New York.
“We’ve been working hard to get ready to try again. We still have embryos from our last cycle, which we did in New York. We transferred them here. We can’t use them. We are 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 try and see if we can have another baby.”
Beth David-Dillard said she felt “very helpless and very frustrated” and in a “little bit of disbelief.” She said that before transferring the embryos to Alabama, the couple briefly discussed whether the state’s strict abortion ban or political climate might be a problem, but they assumed it would work out in the end.
“It just feels like our rights are being limited,” 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 in the provision or receipt of services in connection with in vitro fertilization.”
Civil lawsuits could be filed against manufacturers of IVF-related goods, such as the nutrient-rich solutions used to grow embryos, but damages would be capped and criminal charges would be prohibited. Doctors have expressed concern that without some protection for manufacturers, they will not be able to get the products they need for IVF.
Dr. Michael C. Allemand of Alabama Fertility said the legislative proposal would allow the clinic to resume IVF services by “getting us back to a normal state of affairs in terms of what the liability issues are.”
He said the past few weeks have been difficult for patients and staff as procedures have been postponed.
“There have been some really heartbreaking conversations,” Allemand said.
The American Society for Reproductive Medicine, a group that represents IVF providers across the country, said the legislation does not go far enough. Sean Tipton, a spokesman for the organization, said Monday that the legislation does not solve the fundamental problem, which he said is the court’s ruling “confusing fertilized eggs with children.”
Democrats in the House of Representatives proposed legislation that would state in state law or the state constitution that a human embryo outside the uterus cannot be considered an unborn child or human being under state law. Democrats argued that this was the most direct way to address the issue. Republicans have not put the proposals to a vote.
State Republicans are reckoning with an IVF crisis that they helped create in part through anti-abortion language added to Alabama’s 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 the state could ban abortion if Roe v. Wade were overturned, but opponents argued it could establish a “personality” for fertilized eggs.
Collins said she doesn’t think lawmakers got it wrong with the amendment, but that the wording was so broad that it had consequences they didn’t expect.
Collins, who sponsored the state’s strict abortion ban, said she believed any law exempting embryos from legal protections under the 2018 amendment could be deemed unconstitutional. Changing the Constitution, she said, is a longer conversation.
“It is very divisive,” she said. “Everyone has a very strong opinion about when life begins.”
Republicans are also trying to navigate tricky political waters — torn between widespread popularity and support for IVF — and conflict within their own party. Some Republicans have tried unsuccessfully to add Louisiana-style language to ban clinics from destroying unused or unwanted embryos.