Facing pressure to resume in vitro fertilization services in the state, Alabama's governor quickly signed legislation into law Wednesday protecting doctors from potential legal liability raised by a court ruling equating frozen embryos with children.
Republican Gov. Kay Ivey signed the bill after it was approved in a late-night session by lawmakers who rushed 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 thrilled to sign this important short-term measure into law so that couples in Alabama who hope and pray to be parents can grow their families through IVF,” Ivey said.
Republicans in the GOP-dominated Alabama Legislature chose to support 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, a measure that some said would be necessary to settle the issue permanently.
The Alabama Supreme Court ruled last month that three couples whose frozen embryos were destroyed in an accident at a storage facility can file wrongful death lawsuits for their “ectopic children.” The ruling, which requires a fetus to be treated like a child or fetus of a pregnant woman under wrongful death law, has raised concerns about the clinics' civil liabilities. Three major IVF providers have temporarily suspended their services.
The new law, which took effect immediately, protects providers from prosecution and civil lawsuits “due to fetal damage or death” during IVF services. Civil lawsuits are possible against manufacturers of IVF-related goods, such as nutrient-rich solutions used to grow embryos, but damages will be capped at “the price paid to those affected in the in vitro cycle.”
Patients and doctors have traveled to Montgomery to urge lawmakers to find a solution. Couples described dates that were suddenly canceled and how their paths to parenthood were suddenly in doubt.
Doctors from the Alabama Fertility Clinic, one of the clinics that temporarily halted IVF services, saw the bill finally pass. They said it would allow them to resume embryo transfers “starting tomorrow.”
“We have some transfers tomorrow and some on Friday. This means 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.
Liz Goldman was at home giving her daughter a bottle while watching the Senate vote live. “She didn't understand it, but it got me excited,” Goldman said of her daughter.
Goldman, whose daughter was born through in vitro fertilization after a uterus transplant, hopes to conceive a second child. But her plans were thrown into doubt when IVF services were temporarily halted. She said that with her complex medical history and the team of doctors involved in her care, there was no way she could move to another state.
“I'm so grateful. The last 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 Stotts, an obstetrician-gynecologist who cast the lone no vote in the Senate on Wednesday, said the bill is “a bill to protect IVF providers and suppliers” and does not protect patients or their embryos.
“It actually limits the recourse of mothers who participate in IVF and places a dollar value on human life,” Staats said.
House Democrats have proposed legislation that would say a human fetus outside the womb cannot be considered an unborn child or a human being under state law. Democrats said this was the most direct way to deal with the issue. Republicans did not put the proposal to a vote.
“We're not offering a solution here,” said Rep. Chris England, a Democrat from Tuscaloosa. “We are creating more problems. We have to confront the elephant in the room.”
Republicans in the state are dealing with a crisis they partly helped create with the addition of anti-abortion language to the Alabama Constitution in 2018. The amendment, approved by 59% of voters, says it is state policy to recognize “the rights of unborn children.”
The phrase became the basis of the Supreme Court's ruling. At the time, supporters said it would allow the state to ban abortion if Roe v. Wade was overturned, but opponents said it could establish “personhood” for fertilized eggs.
England said the legislation is an attempt to play a “Whac-A-Mole lawsuit” instead of confronting the real issue — the implications of the personhood-like language in the Alabama Constitution.
The American Society for Reproductive Medicine, a group that represents IVF providers across the country, says the legislation goes no further. Sean Tipton, a spokesman for the organization, said this week that the legislation does not correct the underlying problem, which is the court ruling “mixing fertilized eggs with children.”
The bill's Republican sponsors, Sen. Tim Melson and Rep. Terry Collins, said the proposal was the best immediate solution they could find to resume IVF services.
“The goal is to reopen these clinics and enable women to undergo treatment and have a successful pregnancy,” Melson said.
Republicans are also trying to navigate difficult political waters — torn between broad popularity and support for artificial insemination — and conflicts within their party. Some Republicans tried to introduce an amendment to the bill that would prohibit the destruction of unused embryos.
Melson and Collins said lawmakers may have to explore additional measures, but they said it's a difficult topic.
“I think there's a big difference of opinion about when life actually begins. A lot of people say pregnancy. A lot of people say implantation. Some people say heartbeat,” Melson said when asked about proposals that frozen embryos couldn't be considered babies under state law. : “I wish I had the answer.”
Melson, a physician, said any additional legislation should be “based on science and not just gut feelings.”
“I can tell you right now that there are a lot of different opinions about what is the right thing to do,” he said.
