Kentucky legislation shielding doctors and other health providers from criminal liability was written broadly enough to apply to in vitro fertilization services, a Republican lawmaker said Friday as the bill won final passage. Alabama passed a similar measure after the State Supreme Court generated controversy by ruling the frozen embryos are “children.”
The Kentucky measure, which now goes to Democratic Governor Andy Beshear, would accomplish what other bills sought to do to safeguard access to IVF services, GOP state Senator Whitney Westerfield said in an interview. The other bills have made no progress in Kentucky's GOP supermajority legislature with only a few days left in this year's session.
Westerfield, an abortion opponent who chairs the Senate Judiciary Committee, said during the 37-0 Senate roll call vote that the bill's definition of health care providers was broad enough to apply to IVF services.
"It was important to me to make that clear that providers can do what they do every day, and what moms and dads are counting on them to do every day to provide their services without fear of being prosecuted unduly," Westerfield said in the interview afterward. "And I feel confident the bill is going to do that."
In vitro fertilization emerged as a political issue across the U.S. in February after the Alabama Supreme Court ruled that in wrongful death lawsuits in that state, embryos outside the uterus had the same legal protections as children. Major medical providers in Alabama paused IVF services until Alabama's governor signed a quickly passed law protecting IVF providers from legal liability.
While IVF is popular, some anti-abortion advocates have been pushing to recognize embryos and fetuses as humans as a step toward banning abortion.
The Kentucky legislation — House Bill 159 — would shield health care providers from criminal liability for any "harm or damages" alleged to have occurred from "an act or omission relating to the provision of health services." That legal protection would not apply in cases of gross negligence or when there was malicious or intentional misconduct.
The measure originated in the Kentucky House, where its lead sponsor, Republican State House member Patrick Flannery, said it was intended to apply to all health care providers –- including nurses, doctors and other health providers. The bill won 94-0 House passage last month.
During the House debate, supporters said their motivation was to protect frontline health workers from prosecution for inadvertent mistakes.
The legislation drew only a short discussion Friday in the Senate, and Westerfield was the only senator to raise the IVF issue.
He said afterward that he doesn't think Kentucky courts would make the same ruling that the Alabama court did. But legislative action was important, he said, to reassure those providing IVF services that "they can keep doing their jobs" and that couples feel "safe knowing that they can go down that path knowing it's not going to be interrupted."
After the Alabama court ruling, Westerfield filed a bill to limit liability for health care providers if there is a loss or damage to a human embryo. That bill and a separate one to protect IVF providers from criminal liability when providing fertility services have stalled in committees.
Democratic state Senator Cassie Chambers Armstrong, lead sponsor of the other bill, supported the measure that won final passage Friday but said she'd prefer one that's more direct.
"It would behoove us to advance one of the bills that specifically addresses IVF, because then it is very clear," she said in an interview.
As for the measure that passed, she said: "I do believe that this is a good bill that does have a plausible reading that would provide IVF protection. It's not as clear as I would like, but it is a step in the right direction."
