Alabama passed a new IVF law. But questions remain.

The Alabama Legislature passed a bill last week to restart in vitro fertilization (IVF) services in the state.

But the clinic at the center of the Alabama Supreme Court case that put IVF in jeopardy said it’s not clear that the law is enough.

“At this time, we believe the law falls short of addressing the fertilized eggs currently stored across the state and leaves challenges for physicians and fertility clinics trying to help deserving families have children of their own,” said Mobile Infirmary Health and the Center for Reproductive Medicine in a joint statement.

Both entities were sued after an unauthorized person destroyed frozen embryos at the clinic in 2020. The parents involved sued. On Feb. 16, the Alabama Supreme Court ruled that the frozen embryos were persons and the case could move forward under an 1872 law allowing parents to claim civil damages for the deaths of their children.  At least one other lawsuit has been filed against the organizations since the Alabama Supreme Court’s ruling.

The court also cited a 2018 constitutional amendment that says “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children,including the right to life.”

Two other programs that stopped IVF services have resumed them. The University of Alabama in Birmingham (UAB) is “moving to promptly resume IVF treatments, [but they] will continue to assess developments and advocate for protections for IVF patients and providers.”

Alabama Fertility, an IVF clinic with locations in Birmingham, Huntsville and Montgomery that was a frequent presence in the State House throughout the bill’ development, said in a Facebook post last week that they are resuming IVF treatment and praised lawmakers for “understanding the importance of immediate access to IVF and for finding a solution in a complex issue.”

The Supreme Court decision drew widespread criticism and led hundreds of patients and providers to Montgomery for a Feb. 28 protest.

Legal questions

The bill passed on Wednesday and signed by Gov. Kay Ivey that evening extends criminal and civil immunity to IVF clinics for operations.

A House committee amended the legislation to include criminal immunity for manufacturers of products used in IVF treatment if embryos are destroyed, though not civil immunity. Manufacturers of goods used in IVF found responsible would be required to compensate for damages, based on the cost of the fertilization treatment paid by the family.

The legislation does not address when life begins, and Democrats argue that the court’s reliance on the 2018 measure implies that the issue can only be resolved through another constitutional amendment. House Minority Leader Anthony Daniels, D-Huntsville, filed an amendment to address the issue, with support from all 28 Democratic House members. The bill has yet to be voted on in committee.

Dana Sussman, deputy executive director at Pregnancy Justice, a legal organization representing criminalized pregnant people, said that House Democrats, by trying to define when life begins through a constitutional amendment, are recognizing that Chief Justice Tom Parker said in his concurring opinion that any legislative fix won’t be sufficient constitutionally.

“The challenge then becomes, in a state like Alabama, is there any other way to define when life begins other than from the moment of conception — which is not an actual moment, it’s not a scientific or medical designation — can they make a determination that moves the needle in some way from where it is right now? And I don’t know. I have strong doubts,” Sussman said.

‘Juridical person’

Rep. Terri Collins, R-Decatur, who carried the legislation in the House, said that lawmakers are still trying to come up with a long-term solution, and a constitutional amendment is one of the potential solutions. She said they are also looking at the Louisiana model. The state considers an embryo a “juridical person” with limited rights.

In Louisiana, intentionally destroying “viable” embryos is prohibited, which means doctors are not allowed to dispose of any embryos that are still dividing. An embryo that fails to continue developing within a 36-hour period is deemed non-viable and loses its limited legal status as a person.

But as nola.com reported, Louisiana does not have a “Sanctity of Life” constitutional amendment, nor have the courts cited the state law in any decision.

Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, said in a statement after Gov. Kay Ivey signed the legislation into law that while they were relieved that clinics in Alabama can restart IVF treatment, “this legislation does not address the underlying issue of the status of embryos as part of the IVF process.”

“There is more work to be done,” the statement said.

Sussman said that there are real concerns around not permitting negligence or malpractice claims “that might be available or might be necessary” to ensure that there is a standard of care.

There have been multiple lawsuits around negligence and malpractice related to IVF treatment around the country, but Sussman said none of those lawsuits revolved around fetal personhood or conflicted with a state constitution.

She said that there are real concerns around not permitting negligence or malpractice claims “that might be available or might be necessary” to ensure that there is a standard of care and there should be legal recognition and accountability when something goes wrong.

“But that cannot happen at the sacrifice of the rights of the of pregnant people, of people with the capacity for pregnancy, because that’s what happens when you designate embryos as children,” she said, adding that the rights of a pregnant person diminish when the embryos and fetuses are “rights-bearing individuals.”

This story was originally published in the Alabama Reflector