Alabama Gov. Kay Ivey signs legislation protecting IVF providers from legal liability into law

MONTGOMERY — Alabama Gov. Kay Ivey signed legislation into law Wednesday shielding in vitro fertilization providers from potential legal liability raised by a court ruling that equated frozen embryos to children.

The decision by the Alabama Supreme Court last month raised concerns about civil liabilities for clinics and prompted an outcry from patients and other groups. Three major IVF providers paused services.

The new law protects providers from lawsuits and criminal prosecution for the “damage or death of an embryo” during IVF services.

Republicans in the state Legislature proposed the lawsuit immunity as a way to get clinics reopened. They refused, however, to take up a bill that would address the legal status of embryos.

The state’s three major IVF providers paused services after the Alabama Supreme Court’s ruling last month.

The decision prompted an outcry from groups across the country. Patients in Alabama also shared stories about having upcoming embryo transfers abruptly canceled and their paths to parenthood put in doubt.

“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.

Republican Sen. Tim Melson, the bill sponsor, said he was “just elated to get these ladies back on schedule.”

Doctors from Alabama Fertility, one of the clinics that had paused IVF services, watched as the bill got final passage. They said the passage will allow them to resume embryo transfers “starting tomorrow.”

“We have some transfers tomorrow and some Friday. This means we 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 state Supreme Court had 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.

Republicans in the GOP-dominated Alabama Legislature looked to the immunity proposal as a solution to clinics’ concerns. But they have shied away from proposals that would address the legal status of embryos created in IVF labs.

House Democrats proposed legislation last week stating that a human embryo outside a uterus can not 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 have not brought the proposal up for a vote.

Lawmakers pushed the immunity proposal as a way to address clinic’s immediate concerns and get them open. But they did not take up any legislation that would address the legal status of embryos.

“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. I wish I had the answer,” Melson said. Melson, who is a doctor, said lawmakers may have to come back with additional legislation but said he said it should be based on “science not feelings.”

The court ruled that three couples whose frozen embryos were destroyed when a hospital patient got into the storage unit at a fertility clinic and dropped the embryos 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. A fourth couple filed a similar wrongful death lawsuit last week.

The court ruling recognizing embryos as children drew a backlash and patients saw appointments abruptly canceled or their paths to parenthood put in doubt.

The bill says 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 when providing or receiving services related to in vitro fertilization.” The immunity would be retroactive but would exclude pending litigation. 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 and criminal prosecution would be forbidden.

Dr. Michael C. Allemand with Alabama Fertility said Tuesday that the legislative proposal would allow the clinic to resume IVF services by returning “us to a normal state of affairs in terms of what the liability issues are.”

He said the past weeks have been difficult on patients and staff as procedures have been postponed.

“There’s been some truly heart-wrenching conversations that have taken place,” Allemand said.

The American Society for Reproductive Medicine, a group representing IVF providers across the country, said the legislation does not go far enough. Sean Tipton, a spokesperson for the organization, said Monday that the legislation does not correct the fundamental problem, which he said is the court ruling “conflating fertilized eggs with children.”

House Democrats proposed legislation that would put in state law or the state Constitution 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 have not brought the proposals up for a vote.

Republicans are also trying to navigate tricky political waters — torn between widespread popularity and support for IVF — and conflicts within their own party. Some Republicans have unsuccessfully sought to add Louisiana-style language to ban clinics from destroying unused or unwanted embryos.

State Republicans are reckoning with an IVF 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.

During debate in the House of Representatives on Tuesday, state Rep. Chris England, a Democrat from Tuscaloosa, said lawmakers were attempting to play “lawsuit whack-a-mole” instead of confronting the real issue — the implications of personhood-like language in the Alabama Constitution.

“The real solution to this is determining the definition of a child and having a real conversation about the implications of some of the decisions we’ve made,” England said.