Facing pressure to get in vitro fertilization services restarted in the state, Alabama's governor swiftly signed legislation into law Wednesday shielding doctors from potential legal liability raised by a court ruling that equated frozen embryos to children.
Republican Gov. Kay Ivey signed the bill after it was approved in a late-night session by lawmakers scrambling to address a wave of criticism after services were halted at some of the state's largest fertility clinics. Doctors from at least one clinic said they would resume IVF services on Thursday.
“I am pleased to sign this important, short-term measure into law so that couples in Alabama hoping and praying to be parents can grow their families through IVF,” Ivey said.
Republicans in the GOP-dominated Alabama Legislature opted to back the immunity proposal as a solution to the clinics’ concerns. But they shied away from proposals that would address the legal status of embryos created in IVF labs, action that some said would be needed to permanently settle the issue.
The Alabama Supreme Court last month ruled that three couples whose frozen embryos were destroyed in an accident at a storage facility 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. Three major IVF providers paused services.
The new law, which took effect immediately, shields providers from prosecution and civil lawsuits “for the damage to or death of an embryo” during IVF services. 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 to “the price paid for the impacted in vitro cycle.”
Patients and doctors had traveled to Montgomery, to urge lawmakers to find a solution. They described appointments that were abruptly canceled and how their paths to parenthood were suddenly put in doubt.
Doctors from Alabama Fertility, one of the clinics that paused IVF services, watched as the bill got final passage. They said it will allow them to resume embryo transfers “starting tomorrow.”
“We have some transfers tomorrow and some Friday. This means that we will be able to do embryo transfers and hopefully have more pregnancies and babies in the state of Alabama,” Dr. Mamie McLean said after the vote.
The University of Alabama at Birmingham similarly said it is “moving to promptly resume IVF treatments."
Liz Goldman was at home giving her daughter a bottle as she watched the Senate vote on a livestream. “She didn’t understand, but it made me excited,” Goldman said of her daughter.
Goldman, whose daughter was conceived through IVF after a uterus transplant, hopes to become pregnant with a second child. But her plans were cast into doubt when IVF services were paused. With a team of doctors involved in her care, she couldn’t just move to another state, she said.
“I’m super thankful. The past two-and-a-half weeks have been the most stressful time of my journey and I’ve been through a lot,” Goldman said.
Republican Sen. Larry Stutts, an obstetrician who cast the lone no vote in the Senate Wednesday, said the bill is an “IVF provider and supplier protection bill” and does not protect patients.
“It is actually limiting the ability of mothers who are involved in IVF to have recourse and it is placing a dollar value on human life,” Stutts said.
House Democrats proposed legislation stating 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 did not bring the proposal up for a vote.
“We aren’t providing a solution here,” said Rep. Chris England, a Democrat from Tuscaloosa. “We’re creating more problems. We have to confront the elephant in the room.”
State Republicans are reckoning with a 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.
England said the legislation is an attempt to play "lawsuit whack-a-mole” instead of confronting the real issue — the implications of personhood-like language in the Alabama Constitution.
The American Society for Reproductive Medicine, a group representing IVF providers across the country, says the legislation does not go far enough. Sean Tipton, a spokesperson for the organization, said this week that the legislation does not correct the fundamental problem, which is the court ruling “conflating fertilized eggs with children.”
The bill's sponsors, Republican Sen. Tim Melson and Republican Rep. Terri Collins, said the proposal was the best immediate solution they could find to get IVF services resumed.
“The goal is to get these clinics back open and women going through their treatment and have successful pregnancies,” Melson said.
Republicans are also trying to navigate tricky political waters — torn between widespread popularity and support for IVF — and conflicts within their own party. The leaders of several anti-abortion and conservative groups, including Students for Life Action and Susan B. Anthony Pro-Life America, urged Ivey to veto the bill, which they called a “rash reaction to a troubling situation.”
“Any legislation on this issue must take into consideration the millions of human lives who face the fate of either being discarded or frozen indefinitely, violating the inherent dignity they possess by virtue of being human,” they wrote
Melson and Collins said lawmakers may have to explore additional action, but said it's a difficult subject.
“I think there is too much difference of opinion on when actual life begins. A lot of people say conception. A lot of people say implantation. Others say heartbeat,” Melson said when asked about proposals to say frozen embryos couldn’t be considered children under state law.
Melson, who is a doctor, said any additional legislation should be “based on science and not just gut feelings."
"I can tell you right now there are a lot of different opinions on what the right thing to do is," he said.
